[The Title-Page of the Edition of 1682]
THE TWO BOOKS
ON THE DUTY OF MAN AND CITIZEN
ACCORDING TO THE NATURAL LAW
BY SAMUEL VON PUFENDORF
CAMBRIDGE
FROM THE HOUSE OF JOHN HAYES
Printer to the Celebrated University
1682
At the Charges of John Creed, Bookseller, Cambridge.
______
TO THE VERY ILLUSTRIOUS AND CELEBRATED GENTLEMAN
GUSTAVE OTTO STEENBOCK
COUNT IN BOGESUND
FREIHERR VON CHRONEBECH AND OHRESTEEN, ETC.
ARCHITHALASSUS OF THE KINGDOM OF SWEDEN
AND CHANCELLOR OF THE CAROLINE UNIVERSITY OF THE
GOTHS, ETC.
MY MOST OBLIGING LORD
Most Illustrious and Distinguished Count,
Most Obliging Lord,
No slight doubt troubled my distraught mind, as to whether it would be quite
proper for such an insignificant work to claim for itself the auspices of
such an illustrious name. For on the one hand the smallness of the little
book caused a blush because it possessed no genius or splendor, seeing that
it embraced merely the first rudiments of moral philosophy excerpted almost
entirely from our more lengthy work. But just as it can furnish some use
perhaps to those who are undertaking the first step to that study, so, if
account must be taken here of your dignity and my obligation, it will seem
sufficiently suitable for neither. On the other hand, your private no less
than your public merits stimulated a mind so devoted to your Most
Illustrious Excellency, so that I thought it a brand of ingratitude to be
vigorously feared, if I neglected any such occasion at least of attesting
how much it was beholden to You.
Nor do I now speak of those merits whereby through noble achievements at
home and abroad you have rendered the country especially obligated to you,
and at the same time have since dedicated your name to immortal glory. To
recount those deeds commensurately with their dignity is the task of
history, which, while it is relating at length the glorious deeds of your
nation and the spreading of its arms victoriously throughout so many
regions, finds you always an important factor in such great achievements;
and wonders that the same man, when there has been a cessation from war,
blossoms forth no less in the arts of peace, applying himself first to the
government of a very large province and afterwards to a protecting
administration of the entire kingdom.
Rather would it have been proper in this place to touch upon those gifts
which have been received from your Most Illustrious Excellency by this newly
established University in which it was given to me to fix the abode of my
fortunes upon the invitation of the All-Highest King. It can never, in
proportion to your merits, proclaim you enough as the wisest as well as the
kindest defender and greatest moderator, while it daily finds you striving
earnestly and untiringly for its own advantages and embellishments among
such a great mass of public business.
Indeed with what respect ought I value the benefits which your Most
Illustrious Excellency has conferred upon me in an especial manner? To
others it is the height of their wishes to become known to men of rank and
to be approved by them. But to me your effusive favor has been pleasing to
such an extent that more than once have I experienced it most liberally
bestowed both in promoting my advantages and in turning aside from myself
the assaults of malevolent persons. Although it is far beyond the measure of
my means to make any return for these favors, yet it will surely be
necessary at least to acquit myself of a humble attitude of mind and a
candid acknowledgment of so many benefits, inasmuch as the benevolence of
great men has this characteristic also, that it gladly allows itself to be
satisfied with the attestation of a grateful mind. And because it is
customary for noble-minded men of their own accord to attach honor to even a
slight exhibition of reverence for themselves by way of expressing one's
loyalty, the goodness of your Most Illustrious Excellency bids me to hope
likewise for this, that I may not seem to have been wanting to your
greatness, if I make use of such a petty work as an occasion of publicly
expressing my mind which is so devoted to your Excellency.
For it would be too much to expect from me a work which is brilliant and
which can attain a long life, especially since geniuses are tremendously
chilled, if they discover that, while they are striving to snatch themselves
away from the common crowd, malice and ignorance use their teeth upon them
with impunity and no regard is had for repose. Yet my mind will begin to
bloom forth with new vigor and will cast aside the weariness that has sprung
up, if I shall have understood that this homage has been received by your
Most Illustrious Excellency with a placid brow, and if at the same time you
shall have bid me rest easy forever about your favor and patronage. So may
God preserve your Most Illustrious Excellency flourishing and vigorous for
many years as the glory and gain of your country, your most brilliant
family, and our new Commonwealth!
Your Most Illustrious Excellency's
most devoted,
SAMUEL PUFENDORF.
Lund, January 23, 1673.
TO THE BENEVOLENT READER, GREETING![1]
If the custom accepted by many erudite men had almost the force of law, it
might have seemed superfluous to say anything by way of preface regarding
the raison d'Ítre of this work, since the subject matter itself tells
sufficiently that I have done nothing else than set forth for beginners the
chief headings of natural law, briefly, and, I think, in a clear compendium,
lest, if they mingled themselves into the diffuse regions of this study
beyond as it were an elementary knowledge, they be put to flight by the
abundance and difficulty of the subject matter from the very beginning. At
the same time it seemed to be to the public advantage that the minds of
studious youths be imbued with moral doctrine of this character, in order
that its manifest use in civil life might be considered. And although
otherwise I would always have judged it inglorious to reduce to a compendium
the more extensive writings of others, and much more of myself, yet when the
authority of superiors is added, I do not think that the prudent will blame
me for having wished to devote this labor simply to the advantage of youth,
whose approval deservedly should be so great that a work undertaken for
their favor, even when it does not possess genius or brilliancy, should not
be judged unworthy by anyone. But that principles of this character are not
more suitable for the entire study of law than any elements of civil law, no
one denies who has half a sane head. And this might be sufficient for the
present, did not some counsel that it would not be amiss to preface some
remarks which might make for the understanding of the character of the
natural law as a whole and the more accurate marking off of its limits. I
have undertaken this all the more willingly because in this way a pretext is
taken away from men who are importunately curious to put forth their
feverish criticism upon this study, which, though often as it were
intermingled, is separated from their province.
Therefore it is manifest that from three founts, so to speak, men derive
the knowledge of their duty and what in this life they must do, as being
morally good, and what not to do, as being morally bad: namely the light of
reason, the civil laws and the particular revelation of the divine
authority. From the first flow the commonest duties of man, especially those
which make him sociable with other men; from the second, the duties of man
in so far as he lives subject to a particular and definite State; from the
third, the duties of a man who is a Christian. From this three separate
studies arise, the first of which is the natural law, common to all nations;
the second, the civil law of the single individual States, into which the
human race departed. The third is called moral theology in contradistinction
to that part of theology which explains what is to be believed [that is,
dogmatic theology].
Each of these studies uses a method of proving its dogmas corresponding to
its principle. In the natural law it is asserted that something must be
done because the same is gathered by right reason as necessary for
sociability between men. The last analysis of the precepts of the civil law
is that the law-giver so established. The moral theologian acquiesces in
that ultimate proposition, because God has so ordered in the Holy
Scriptures. But just as the study of civil law presupposes the natural law
as a more general study, so if the civil law contains anything upon which
the natural law is silent, not on this account is the latter to be counted
repugnant to the former. In a similar way, if in moral theology some
doctrines are handed down as flowing from divine revelation to which our
reason does not extend and therefore which the natural law ignores, it would
be very ignorant on that account to match the former with the latter or
imagine some repugnance between those studies. Vice versa, if any principles
in the study of the natural law are presupposed from that which can be
investigated by reason, on this account in no wise are the former opposed to
those which the sacred literature hands down with greater clearness upon the
same subject, but are only conceived by abstraction. Thus, e.g. in the study
of the natural law, by abstracting from that knowledge which is drawn from
the Sacred Scriptures, the condition of the first man is fashioned,
howsoever he was projected in the world, in so far as reasoning alone can
attain it. To oppose such principles to those which the divine literature
hands down concerning the same condition, "this indeed is the juice of a
black cuttlefish, this is mere envy."[2]
Indeed just as there will easily be harmony between the civil law and the
natural law, so it seems a little more difficult to determine the boundary
lines between the same natural law and moral theology and to define the
chief respects in which they differ. I shall briefly set forth my opinion
upon this matter, not indeed by virtue of papal authority, as if it would by
some privilege protect me from all error, nor as one who from dreams sent
down from on high, or some irrationable instinct, is animated with a
trustworthiness of some singular illumination; but as one who is minded to
ornament the Sparta which has been entrusted to him in proportion to the
slight measure of his genius. In such a way, however, that, just as I am
ready to gladly listen to the better suggestions of prudent and erudite men
and to correct my previous pronouncements without obstinacy, so I do not
care a straw for those rivals of Midas, the critics who wantonly rush into
judgments upon matters which are no concern of theirs, or for a whole nation
of busybodies whose character Phaedrus very cleverly depicts. "Tremblingly,"
he says, "they run about, busy in idleness, panting freely, doing much in
doing nothing, troublesome to themselves and detestable to others."[3]
The first distinction therefore, whereby those studies are mutually
separated, results from the different source from which each derives its
dogmas, and upon this point we have just touched. Consequently, if there be
some actions which we are bid by divine literature to perform or not to
perform, yet whose necessity can not be grasped by reason left to itself,
those actions fall outside the natural law and properly look toward moral
theology. Moreover in theology law is considered proportionately as it has
annexed a divine promise and a certain sort of pact between God and man.
From this consideration the natural law abstracts, obviously since that
which reason alone can not discover proceeds from the particular revelation
of God.
Furthermore, that is by far the most important distinction whereby the end
and aim of the natural law is included only in the circuit of this life,
and therefore it moulds man accordingly as he ought to lead this life in
society with others. But moral theology moulds a man into a Christian, who
should not only have the purpose of passing honorably through this life, but
who especially hopes for the fruit of piety after this life and who on this
account has his politeuma [policy] in heaven, while here he lives merely as
a wayfarer or sojoumer. For although the mind of man not only with a glowing
desire leans, as it were, towards immortality and vigorously shrinks from
self-destruction, and hence among many of the Gentiles the persuasion has
become inveterate that the soul remains after its separation from the body
and that then it will go well with the good and ill with the bad;
nevertheless a persuasion of this sort on such matters, in which the mind of
man might plainly and firmly acquiesce, is drawn only from the word of God.
Hence the decrees of the natural law are adapted only to the human forum,
which does not extend beyond this life, and they are wrongly applied in many
places to the divine forum, which is the especial care of theology.
From this also it follows that, because the human forum is busied with only
the external actions of man, while to those which he concealed within the
breast and produce no effect or sign outside it does not penetrate and
consequently is not disturbed about them, the natural law likewise is
concerned to a great extent with the directing of the external actions of
man. But for moral theology it is not sufficient that the external customs
of men have been made in some way or another in keeping with decorum; but it
is concerned chiefly with this, that the mind and its internal movements be
fashioned after the will of the deity; and it reprobates those very actions
which extrinsically indeed appear to be proper, but nevertheless emanate
from an impure mind.
And this too seems to be the reason why in the divine books there is not so
frequently question of those actions which have been forbidden under
penalties of the human forum or concerning which the rights are there
declared as of those actions which (to use the words of Seneca) are outside
of public documents. This is manifestly evident to those who have carefully
examined the precepts and virtues inculcated therein, although, while those
very Christian virtues dispose the minds of men as much as possible to
sociability, moral theology likewise promotes in a most efficacious manner
honesty of civil life. So also vice versa, if you see anyone who shows
himself a turbulent and troublesome member of civil life, you may safely
judge that the Christian religion clings inside his lips only and has not
yet penetrated his heart. And from this not only do I think that the genuine
limits are manifestly evident which separate the natural law, as laid down
by us, from moral theology; but also that natural law is by no means
repugnant to the dogmas of true theology, but only abstracts from some of
its dogmas which can not be investigated by reason alone.
Hence it is also patent that man now necessarily confides in the teachings
of natural law, accordingly as his nature has been corrupted and
consequently as he is an animal bubbling over with many wicked desires. For
although no one is so stupid as not to perceive in himself affections that
are inordinate and tending out of the beaten path, yet, if the divine
literature did not light the way, no one could now be certain that that
rebellion of the affections arose through the fault of the first man. And
consequently since the natural law does not extend to those things to which
reason can not reach it would be incongruous to wish to deduce it from the
uncorrupted nature of man. Especially since many commandments of the
Decalogue itself, seeing that they are couched in negative terms, manifestly
presuppose the corrupted nature of man.
So, for example, the first commandment seems certainly to presuppose the
proclivity of man to believe in idolatry and polytheism For if you suppose
men as endowed with a nature still uncorrupted in whom the knowledge of God
was perfectly clear and who from time to time enjoyed His familiar, so to
speak, revelation I do not see how it could possibly enter the mind of such
a man to fashion for himself something which he would wish to worship in
place of the true God or along with Him, or believe that divinity was
inherent in that thing which he himself had fashioned. Therefore there was
no need to enjoin upon this man in negative terms, not to worship strange
gods, but for him was sufficient the simple affirmative commandment, love,
honor and worship God Whom you recognize as the Creator of this Universe and
your own Creator likewise.
The same thing obtains with regard to the second commandment. For why should
he be forbidden by a negative commandment to blaspheme God who clearly
understood His majesty and benefactions and whom no wicked desires
disturbed, and whose mind quietly acquiesced in the status assigned to it by
God? How could such an insanity take possession of him? Nay rather he Was to
be advised with an affirmative commandment only, to glorify the name of God.
Yet we must apparently speak otherwise with regard to the third as well as
the fourth commandment, for since they are affirmative and do not
necessarily presuppose a corrupted nature, they may find place in either
status. Bat concerning the rest of the commandments, which have regard for
one's neighbor, the matter is likewise very evident. For upon man, such as
he was established by God in the beginning, it was sufficient simply to
enjoin that he should love his neighbor; to this his nature was inclined.
But how could he be commanded not to kill, when death had not yet fallen
upon man, since it entered the world through sin?
But there is the greatest need of a negative commandment now when instead of
love so many hatreds stalk among men that there is a great crop of those who
from mere envy or lust for attacking another's fortune do not hesitate to
overthrow others who are not only innocent but even friends and deserving
well of them, and indeed who do not blush to pass off a terrible and rash
attack of a turbulent mind under the word conscience. So why was there need
expressly to forbid adulteries among those spouses who loved each other with
such an ardent and sincere love? Or why was it relevant to forbid thefts,
since there was no avarice, no penury as yet, and no one thought something
belonged to himself which could benefit another? Or why was it necessary to
forbid false testimony, since they did not yet exist who thereafter strove
to obtain fame and glory for themselves, if they could asperge another by a
base and stupid false accusation? So that it would not be inapt to apply to
this that statement of Tacitus: "The most ancient of mortals, as yet without
evil lust, used to live without baseness, crime, and therefore without
punishment and coercions; and since they desired nothing beyond custom, they
were forbidden nothing through fear."[4]
[Note 4 and beginning of next page apparently omitted from the original.]
the state of uncorrupted nature or indeed the same law? Here reply can be
made in a few words; that the chief headings of the law are the same in
both states, but that the many particular precepts vary on account of the
diversity of the human condition; or rather, that the same essence of the
law is unfolded through different, though not contrary, precepts, according
as the man by whom the law must be observed exists in a different manner.
Our Saviour reduced the essence of the law to two heads: Love God and love
your neighbor. To these heads can be referred the entire natural law, in
the uncorrupted as well as in the corrupted state of mankind; unless because
in the uncorrupted state there seems to have been little or no difference
between the natural law and moral theology. For the sociability, which we
have laid down as the foundation for the natural law, may be properly
resolved into love of neighbor.
But when we come down to the particular precepts, surely no slight
distinction arises with regard to the affirmative as well as the negative
precepts. And indeed, so far as the affirmative precepts are concerned, not
a few of them exist now in the present state for which there does not seem
to have been room in the primeval state: and this partly because they
presuppose an institution such as it is not clear whether it falls to the
happiest condition of mankind; partly because they are not intelligible
without misery and death which was exiled from that state. For example, it
is now among the precepts of the natural law not to deceive another in a
buying or selling, not to use a false ell, measure or weight, to return
borrowed money at the time agreed upon. But it is not yet perfectly clear
whether, if the human race had remained free from sin, commercial relations
of the same character as are now carried on would have been put into
practice, and whether there would then have been any use for money. So if
such States as now exist had no place in the state of innocence, there was
likewise no place there for precepts which presuppose States of this kind
and the authority contained in them. Now too we are bidden by the natural
law to succor the needy, to aid those oppressed by an unfortunate calamity,
to take care of widows and of orphans. But these are prescribed in vain to
those who are not subject to misfortune, need and death. We are now bidden
by the natural law to be prone to condone wrongs and to seek out peace. This
would be fruitless among those who do not sin against the laws of
sociability.
And this very thing is likewise manifestly evident in negative precepts,
which have regard for the natural (not the positive) law. For although any
affirmative precept may virtually contain an interdict of everything
opposed (for example, he who is bidden to love his neighbor, by that very
fact is forbidden to do all those deeds to him which are repugnant to love);
nevertheless it seems superfluous that they be set apart by express
precepts when no wicked desires impel [one] to commit such deeds. To
illustrate this we can bring forward the fact that Solon was unwilling to
set aside a punishment for parricides by public law, because he did not
think that such a great- crime would fall to the lot of any son. Similar to
this is the statement of Francisco Lopez de Gomara[5] concerning the peoples
of Nicaragua, that there was no punishment decreed among them for him who
had killed a petty chief (cacique, they called him), because, they said,
there was no subject who wished to think up or perpetrate so dire a crime.
I fear that it may seem affected to inculcate these principles which are so
patent to the majority. Yet for the comprehension of beginners I shall add
this example. There are two boys of altogether different dispositions
entrusted to the education of someone. One is modest and bashful and glowing
with a great love for letters. The other is dissolute, petulant, and loves
abominable lusts rather than books. The substance of the duty of both is the
same, to learn letters. But the individual precepts are different. For it
is sufficient to enjoin upon the former what studies, at what time, and with
what method he ought to treat them. The other, besides these precepts very
sharply given, ought to be forbidden under threat to run around, to play
dice, to sell his books, to depend entirely upon another in composing his
exercises, to be a dude, to consort with harlots. In the same way if anyone
would teach a boy of the former disposition to declaim carefully, he will
bid him euphemein [use felicitous expressions], and him who is not affected
with any desire of such things, to sing them to anyone rather than to
himself.
From which it is manifest, I think, that there would be a far different
aspect of natural law, if anyone wished to presuppose the state of man to be
uncorrupted. And at the same time since the limits whereby this study is
separated from moral theology are so clearly marked off, this study would be
in no worse condition than civil jurisprudence, medicine, natural science or
mathematics; if anyone should dare to burst forth into them amuetos
[uninitiated], arrogating censure to himself unchosen, people would not
hesitate to exclaim what Appelles once said to Megabyzus who was attempting
some discourse or other upon the art of painting: "Be silent, I beseech you,
lest the slave-boys who prepare the white paint laugh at you, in your
attempt to speak upon subjects which you have not learned." But it will be
easy for us to suit good and kindly men. The evil minded and unlearned
calumniators, however, it were better to entrust to their own envy for
punishment, seeing that it is certainly clear and based upon the eternal law
that the Ethiopian does not change his skin.
1. [This Greeting and the preceding Dedicatory Letter and Title-Page have
been translated by Herbert F. Wright.]
2. [HORACE, Sermones. 1, 4, 100-101.]
3. [PHAEDRUS, 2, 52.]
4. La Historia General de las Indias, ch. 207. [The reference is to be found
in Chapter 206 in the edition published at Antwerp in 1554.]
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TABLE OF CHAPTERS
BOOK I
PAGE[1]
CHAPTER
1. On human action
..................................................................... 1 [3]
2. On the norm of human actions, or law in general ................. 12 [12]
3. On natural law .................................................. 18 [17]
4. On the duty of man toward God, or natural religion .............. 24 [22]
5. On the duty of man toward himself ............................... 31 [28]
6. On mutual duties, and first, that of not injuring others ........ 42 [37]
7. On recognition of the natural equality of men ................... 47 [42]
8. On the common duties of humanity ................................ 50 [45]
9. On the duty of contracting parties in general ................... 53 [48]
10. On the duty of the users of language ........................... 62 [56]
11. On the duty of those who take oath ............................. 66 [59]
12. On duty as regards the acquisition of ownership ................ 69 [62]
13. On the duties which result from ownership per se ............... 76 [68]
14. On value ....................................................... 78 [70]
15. On contracts which presuppose the prices of things, and the duties
thence derived ..................................................... 82 [74]
16. The methods of dissolving obligations arising from agreements .. 91 [81]
17. On interpretation .............................................. 93 [83]
BOOK II
PAGE
CHAPTER
1. On the natural state of men ..................................... 98 [89]
2. On conjugal duties ............................................. 104 [94]
3. On the duties of parents and children .......................... 106 [97]
4. On the duties of masters and servants .......................... 112 [101]
5. On the impelling cause for the establishment of a State ........ 115 [103]
6. On the internal structure of States ............................ 118 [106]
7. On the functions of the supreme authority ...................... 123 [110]
8. On the forms of government ..................................... 126 [113]
9. The characteristics of civil authority ......................... 130 [116]
10. On the methods of acquiring authority, especially monarchical . 132 [118]
11. On the duty of rulers ......................................... 135 [121]
12. On civil laws in particular ................................... 140 [125]
13. On the power of life and death ................................ 143 [128]
14. On reputation ................................................. 148 [133]
15. On the power of the supreme authority over property in the
State ............................................................. 152 [136]
16. On war and peace .............................................. 154 [138]
17. On alliances .................................................. 159 [142]
18. On the duties of citizens ..................................... 161 [144]
1. [The numbers in brackets refer to pages of this translation.]
______
THE FIRST BOOK ON
THE DUTY OF MAN AND CITIZEN
BY
SAMUEL VON PUFENDORF
CHAPTER I
On Human Action
1. Duty is here defined by me as man's action, duly conformed to the
ordinances of the law, and in proportion to obligation. To understand this,
it is necessary to treat first of the nature of human action, and also of
laws in general.
2. By human action we understand not any motion proceeding from the
faculties of man, but that motion only which proceeds from and is directed
by those faculties which the Creator[1] has given to mankind above the
brutes, -- I mean that which is undertaken with intellect lighting the way,
and at the bidding of the will.
3. Man has in fact been granted the power not only of knowing the different
things which he meets in this universe, of comparing them and of forming new
notions in regard to them, but also the ability to foresee what he is going
to do, to bestir himself to accomplish it, to shape it to a certain norm and
a certain end, and to infer what the result will be; and further, to judge
whether things already done conform to rule. Moreover, not all the faculties
of man act continually or in a uniform manner. Some of them, in fact, are
excited, and then controlled and directed, by an impulse from within.
Finally a man is not attracted to all objects indifferently, but seeks some
and shuns others. Often too, though the object be present, he checks the
impulse, and when several objects are before him, he selects one and rejects
the others.
4. With regard then to the faculty of comprehending and judging things --
intellect it is called -- we must hold it absolutely certain that any man of
mature age and sound mind has enough of natural light to be able, with
training and due reflection, to comprehend properly at least those general
precepts and principles which make for an honorable and a peaceful life in
this world; also to appreciate the fact that they are in conformity with
human nature. For if this be not admitted, at least within the competence of
the human court, men would be able to shield any misdeeds of theirs by an
invincible ignorance, since in the human court no one can be accused of
violating a rule which it is beyond his powers to comprehend.
5. When a man's intellect has been well instructed as to what is to be done
or left undone, to the point of understanding how to give certain and
unmistakable reasons for its opinion, we call this a right conscience. But
when a man has indeed a correct opinion as regards doing and leaving undone,
without the ability to establish the same by argument, having acquired it
from the general tenor of life in a community, from habit, or from the
authority of superiors, and having no reason impelling him to the opposite
course, we call this a probable conscience. By this the greater part of men
are guided, for it has been given to few to discover the causes of things.
6. To some, however, it happens not infrequently, especially in regard to
particular cases, that arguments for both sides suggest themselves, and they
lack the strength of judgment to see clearly which have greater weight. This
is usually called a doubtfui conscience. And here is the rule for it: So
long as judgment is uncertain as to what is good, or what bad, action must
be suspended. For while the doubt is unremoved, the decision to act involves
an intention to do wrong, or at least neglect of the law.
7. Often too the human intellect mistakes the false for the true, and then
is said to be in error. And error is usually called vincible, when a man
with attention and due care can avoid falling into it; but invincible, when
even by employing all the diligence which the circumstances of the common
life require, one could not avoid the error. This sort, however, at least
among those whose heart's desire it is to nurture the light of reason and
order their lives in accordance with honor, does not usually happen in
regard to the general precepts for living, but merely in connection with
particular matters. For the general precepts of the natural law are clear;
and then he who makes positive laws follows the custom and the duty of
taking special pains that they be made known to his subjects. Hence, without
supine neglect, this error does not arise. But in particular matters it is
easy for error in regard to the object and other circumstances of the action
to steal in against a man's will and without his fault.
8. But where there is simply an absence of knowledge, this is called
ignorance. And the latter is treated in two ways, first, according as it
contributes to the action; second, according as it comes about against the
will, or not without blame. From the former point of view ignorance is
usually divided into the effectual and the concomitant. In the absence of
the former the action in question would not have been undertaken. The latter
may have been absent, and still the action would have been undertaken. From
the second point of view ignorance is voluntary or involuntary. The former
is even knowingly affected, the means of arriving at the truth having been
rejected; or, failing to employ due diligence, one has allowed it to steal
in unawares. The involuntary ignorance is when one does not know what he
could not know, and was not bound to know. And this again is twofold. For
either a man was unable, indeed, to avoid ignorance for the present, and yet
was to blame for being in that state; or else he was not only unable to
conquer his ignorance for the present, but is also not to blame for having
fallen into such a condition.
9. The second faculty which is exclusively seen in man, as compared with the
brutes, is called the will. By means of this, as from some inward impulse, a
man bestirs himself to action, and chooses what especially attracts him,
rejects what does not seem to him suitable. From the will, therefore, man
derives the power of acting of his own accord, in other words, the fact that
he is not set to act by some inward necessity, but is himself the author of
his own action; also the power of acting freely, which means that, when one
object is put before him, he can act or not act, and choose the same, or
reject it, or if several objects are set before him, can select one and
reject the rest. Moreover some human actions are undertaken on their own
account, some in so far as they serve to gain another object, that is, some
have the functions of an end and others of means. Hence as regards an end,
the concern of the will is first to recognize and approve it, then to bestir
itself effectually to gain it, with more or less earnestness of aim; then
having attained, to rest in quiet enjoyment of it. As for means, they are
first approved, then the most suitable, as it appears, selected, and finally
put into practice.
10. And just as the chief reason for considering a man responsible for his
own acts is that he undertook them of his own will, so we must especially
observe that the freedom of the will is by all means to be asserted, at
least in regard to the acts for which a man is commonly held to account
before a human court. But where no freedom at all is left a man, there he
will not himself be held responsible for an act to which he unwillingly
lends his limbs and powers, but the other man, who brings constraint to
bear.
11. Furthermore, although the will always chooses a generic good, and avoids
a generic evil, still, as between individuals, we see a great diversity of
desires and actions. And the cause is the fart that not all good and bad
things appear to a man uncontaminated, but mixed together, good with bad,
bad with good. And because different objects affect peculiarly different
parts, so to say, of the man, -- some, for example, his self-esteem, some
his external senses, some his self-love, the instinct of self-preservation,
-- the result is that the man views these different objects as respectively
becoming, agreeable, and useful. And each of these makes the man incline
especially toward itself, in exact proportion to the strength of the
impression it has made upon him. There is in most men a special penchant
also for certain things, and aversion to others. Consequently, in almost any
action different kinds of good things and bad, real or apparent, crop out
together, and to distinguish these truly, some men have more, some less, of
penetration. It is no wonder then that one man is carried away to that which
is especially abhorrent to another.
12. Moreover, the will of man is not always found in equilibrium as regards
any action, so that his inclination to this or that side comes from his own
inward impulse alone, after maturely weighing everything. But most
frequently the man is impelled in the one direction rather than in the other
by external influences. For, not to mention the common proclivity of human
beings to the bad, the origin and nature of which it is not for our court to
examine, the will gains a special penchant from a peculiarly constituted
nature, by which some are much inclined to a certain kind of action. And
this is observed not only in individuals, but also in entire nations. It
appears to be produced by the character of the atmosphere all about us, and
of the soil, also the combination of humors in the body. resulting from
birth itself, age, food, health, occupation, and similar causes; further by
the conformation of the organs, which the mind uses in performing its
functions, and so on. Here we must note that not only can a man with care
repress and alter his temperament considerably; but also, no matter how much
force is attributed to the latter, it must not be thought to have such
strength as to force the man necessarily into violation of the natural law,
in so far as it is enforced in the human court, where base desires, stopping
short of the outward act, are not considered. And, in fact, no matter how
much Nature, though driven out with a fork, still returns, a man can
nevertheless prevent her causing external acts that are immoral. And the
difficulty encountered in conquering a bent of that sort is balanced by the
glory and praise which here awaits the victor. But should the mind be goaded
with passions such as no reason can hold in check, there is still a way of
emptying them out, as it were, without sin.
13. And then the will is strongly bent toward certain acts by frequent
repetition of acts of the same sort, from which arises a proclivity which we
call habit. The result of habit is that an action is undertaken willingly
and lightly, so that the mind seems to be, as it were, dragged toward the
object, if present, or most ardently to desire it, if absent. And one should
note that there is no habit such that a man cannot with care throw it off
again; and also none that can so far pervert the mind, that a man is unequal
to the task of restraining here and now the outward acts, at least, toward
which habit is swept. And as it is in a man's power to contract a habit of
the kind, no matter how much it facilitates the act, nothing is subtracted
from the value of his good deeds, nor is the guilt of his misdeeds any the
less. In fact, as a good habit heightens a man's praise, so a bad habit his
shame.
14. It also makes a great difference whether there is a calm tranquillity of
mind, or whether it is stirred by certain special emotions, which they call
passions. With regard to these this must be our opinion: however violent
they may be, still by due use of reason a man can be superior to them and
check their attack, at least before the ultimate act. Moreover, some of the
passions are excited by the appearance of a good, others of an evil, and
they spur us on to win some agreeable thing, or to avoid the disagreeable.
Consequently it is in keeping with human nature that more favor and
indulgence among men should go with the second class of passions, and
precisely in proportion to the intolerable violence of the evil which
aroused them. It is in fact thought much more tolerable to dispense with a
good not very necessary to self-preservation, than to suffer an evil tending
to the destruction of our nature.
15. Finally, as there are certain diseases which quite take away the use of
reason, permanently, or for a time, so among many nations it is a common
thing for men actually to invite a kind of malady which soon passes away,
and greatly disturbs the use of reason. By which hint I mean intoxication,
arising from some beverages and some kinds of smoke. It creates in the blood
and spirit a violent commotion, and gives men a proclivity to lust in
particular, to anger, rashness, and excessive mirth, so that many seem to be
carried out of themselves by intoxication, and to have put on an entirely
different nature, as compared with their sober appearance. While it does
not, however, always take away the complete use of reason, as being
self-invited, it is apt to win odium, rather than favor, for the acts done
in that condition.
16. Again, human actions are called voluntary, since they proceed from the
will and are guided by it. In the same way whatever actions are knowingly
undertaken in opposition to the will, are called involuntary, in the
narrower sense of the term. For in its wider sense it also includes acts
committed through ignorance. But by involuntary I here mean the same thing
as compelled, that is, when a man is forced by a stronger principle from
without to surrender the use of his limbs, in such wise as to show his
aversion and dissent by signs, and especially by bodily resistance. Also,
but less exactly, we speak of the involuntary, when under the stress of
necessity one chooses as the lesser evil and undertakes a thing to which
formerly, when unconstrained by necessity, one was absolutely averse. Such
actions they commonly call mixed. With the voluntary they have this in
common, that the will does in the emergency choose the apparently lesser
evil. With the involuntary they agree to a certain extent in their effect,
in that they are either not laid at all to the charge of the doer, or less
severely than are the voluntary actions.
17. But human actions proceeding from and guided by intellect and will
possess this particular attribute, that they can be imputed to a man, that
is, that the man can rightly be regarded as their author, and held to the
rendering of an account of them, and that the consequences which flow from
them fall back upon himself. For there is no more intimate reason why an
action can be imputed to a man, than because, directly or indirectly, it
proceeded from him, knowing and willing it; or because it was in his power,
whether the thing should be done or not. Hence in the moral sciences which
concern the human tribunal, it is accounted a fundamental axiom, that a man
can be called to account for those actions, the performance or omission of
which was in his power; or, -- and this amounts to the same thing, -- that
any action which can be directed by a man, and brought about or not at his
discretion, can be laid at his own door. So too, on the other hand, no one
can be reckoned the author of an action which neither in itself nor in its
cause was within his power.
18. Out of these premises we shall form a number of particular propositions,
from which it will be established what can be imputed to each man, that is,
of what action and result each one can be regarded as the author. First, the
actions which another commits, as also the workings of any other causes, and
any effects, can only be imputed to a man in so far as he has the power and
the duty to control them. Nothing, in fact, is more common among men than
for one man to be intrusted with the direction of another's actions. In this
case, then, if the other should commit any action in regard to which the
first omitted to do what was in his power, that action will be imputed not
only to him who immediately committed it, but also to him who neglected any
part of the direction which was his duty and within his power. This,
however, has its limits and bounds, so that the possible in the case is to
be understood with a certain reservation and in a moral sense. By no
subjection of one man to another is the freedom of the subject so far
extinguished that he cannot resist the direction of the other, and have
different aims, and, on the other hand, human life is not so constituted
that a man continually attached to one man should be able to observe his
every movement. It follows then that, if one has done everything which the
nature of the direction laid upon him suggests, when, nevertheless,
something has been done by the other, it will be imputed to the doer alone.
Thus since men have assumed the ownership of animals, whatever has been done
by them to the detriment of another will be laid to the charge of the owner,
if, indeed, he has omitted any due care and watchfulness. Thus also any
evils which befall another can be imputed to him who, having the power and
duty, did not remove their cause and occasion. So, since men have it in
their power to promote or suspend many natural operations, any advantage or
loss, which they may have occasioned, will be imputed to them in proportion
to their contributory pains or neglect. Also in some extraordinary cases a
man is responsible for such events as are at other times beyond human
control, since the Deity has in a special manner brought them about with
reference to a certain man. These and similar cases aside, it is enough if a
man can render account of his own actions.
19. Secondly, whatever qualities are found, or not found, in a man, when
their presence or absence was not within his power, cannot be imputed to the
man himself, except in so far as he failed by industry to make good his
natural defect, or to second his native powers. Thus, since no one could
insure himself mental penetration and bodily strength, nothing will be
chargeable to any one on that account, save in so far as he availed himself
of training, or failed to do so. Thus it is not the rustic, but the man of
the city and the court, to whom uncouth manners are made a reproach. Hence
fault-finding for qualities whose cause was not in our power is to be
accounted very absurd, for example, shortness of stature, imperfection of
form, and the like.
20. Thirdly, things done through invincible ignorance cannot be laid to
one's charge. For we cannot direct an action when the light of intellect
does not shine before us; and also we arc presupposing that the man was
unable to gain such a light, and was not to blame for this inability.
Indeed, in common life ability [to posse] is understood, in a moral sense,
to be that degree of capacity, shrewdness, and caution, which is usually
judged sufficient, and was based upon plausible reasons.
21. Fourthly, ignorance, as also error, in regard to laws and the duty
imposed upon each man does not release one from responsibility. For he who
imposes laws and duty upon a man is accustomed, and is bound, to bring these
to the notice of the subject. And laws and rules of duty are usually
adapted, and must be so, to the capacity of the subject; and to learn and
remember them must be a care to everyone. Hence he who is the cause of
others' ignorance will be held answerable for the acts also which flow from
that ignorance.
22. Fifthly, if a man lacks opportunity to act without involving himself in
a fault, his failure to act will not be laid to his account. And opportunity
seems to include these four points: (1) that the object of the act be at
hand, (2) that there be a convenient place, where we cannot be hindered by
others, or suffer some harm, (3) that there be a favorable time, when we do
not have more necessary business to transact, -- a time which is favorable
for others also who concur in the act, (4) finally that we have the natural
powers for the act. Without these circumstances the action could not take
place, and hence it would be absurd to hold a man accountable, when the
opportunity to act was lacking. Thus a physician cannot be accused of
indolence, if no one is ill; and a man who is himself in want is not
permitted to be liberal. So also he cannot be charged with hiding his
talent, who has been refused the position for which he made a proper
request. And "unto whomsoever much is given, of him shall be much
required."[2] Thus we cannot suck and blow at the same time.
23. Sixthly, it cannot be laid to a man's account either, that he did not do
things which exceed his powers, and cannot be prevented by these, or brought
about by them. Hence the common saying that there is no obligation for the
impossible. We must, however, add the proviso that a man has not diminished
or lost his power to perform by his own fault. For such a man can be treated
just as if he still retained his powers; for otherwise there would be an
easy way to evade any rather troublesome obligation, by electing to destroy
the power to perform.
24. Seventhly, there is also no responsibility for what one suffers or does
under compulsion. For to avert or escape such things is understood to be
beyond the man's powers. Now compulsion is used in two senses: first, when a
stronger by force employs our limbs to do or suffer something; secondly, if
a more powerful person threatens some great harm at once, and has the
ability to carry it out directly, unless we are ready to bestir ourselves to
do something, or to refrain from action. For in that case, unless we are
expressly obliged to buy off at our own cost the injury we were to inflict
upon a third party, the man who imposes upon us that necessity will be
considered the author of the crime; but the deed can no more be imputed to
us than bloodshed to the sword or the ax.
25. Eighthly, those who are deprived of the use of their reason are not
accountable for their actions. For they are unable to distinguish clearly
what is being done, or to compare it with a standard. Here belong the acts
of infants, before the reason begins to show itself at all dearly. As for
the fact that they are scolded or whipped for certain acts, it is not done
with the idea that they have strictly speaking deserved punishment in the
human court; but it is by way of mere correction and discipline, that they
may not make trouble for others by such actions, or may not form a bad
habit. So, too, the acts of the insane, the unbalanced and dotards, if the
disease has come without their fault, are not regarded as human actions.
26. Ninthly, and finally, one is not accountable for what he imagines he
does in sleep, except in so far as by dwelling with pleasure upon the
thought of such things by day he has deeply impressed their images upon his
mind. And yet these too are very rarely considered in a human court. For in
general imagination in sleep is like a boat adrift without a pilot, so that
it is not in a man's power to determine what kind of images fancy is to
produce.
27. With regard to responsibility for the acts of another, we should observe
more closely that sometimes, to be sure, it happens that an action is not
laid at all to the charge of him who directly committed it, but to another
person who used him as a mere instrument. More commonly, however, an act is
charged both to him who committed it, and to him who concurred by some act
or omission. This happens especially in three ways: either the second party
is accounted the principal cause of the act and he who committed it
secondary; or they both walk pari passu; or the second party is the
secondary cause, and he who committed it the principal. To the first class
belong those who urged another to anything by their influence; those who
gave the necessary consent, without which the other could not have acted;
those who were able and bound to prevent, and did not do so. To the second
class belong those who charge another, or hire him, to commit crime; those
who help, harbor, or defend; those who, being able and bound to lend aid to
the injured party, failed to do so. To the third class are referred those
who give particular advice; those who applaud and approve before the deed;
those who by their example inflame others to wrong-doing, and similar
persons.
______
CHAPTER II
On the Norm of Human Actions, or Law in General
1. Because human actions depend upon the will, but the wills of individuals
are not always consistent, and those of different men generally tend toward
different things, therefore, in order to establish order and seemliness
among the human race, it was necessary that some norm should come into
being, to which actions might be conformed. For otherwise, if with such
freedom of the will, and such diversity of inclinations and tastes, each
should do whatever came into his head, without reference to a fixed norm,
nothing but the greatest confusion could arise among men.
2. That norm is called law, that is, a decree by which a superior obliges a
subject to conform his arts to his own prescription.
3. That this definition may be better understood, we must develop the
meaning of obligation, whence it arises, who can undertake an obligation,
and who impose it upon another. Obligation, then, is commonly defined as a
legal bond, by which we are of necessity bound to perform something. That
is, a kind of bridle is thereby put upon our freedom, so that, though in
actual fact the will can have a different aim, still it finds itself imbued
with an inward sentiment due to the obligation, with the result that, if the
action performed is not in conformity with the prescribed norm, the will is
forced to acknowledge that it has not done what is right. And so if any ill
should befall a man on that account, he would judge that it befalls him not
undeservedly; since by following the norm, as was proper, he might have
avoided it.
4. For the fart that man is fitted to undertake an obligation there are two
reasons: one, because he has a will which can turn in different directions,
and so also conform to the rule; the other, since man is not free from the
power of a superior. For where an agent's powers have been bound by nature
to a uniform mode of action, there we look in vain for free action; and it
is vain to prescribe a rule for a man who cannot understand it nor conform
to the same. Again, assuming that a man does not recognize a superior, there
is for that reason no one who can rightfully impose a necessity upon him.
And if he be ever so strict in observing a certain method of action, and
consistently abstain from certain arts, still he is understood to do this
not from any obligation, but from his own good pleasure. It follows then
that he is capable of an obligation who not only has a superior, but also
can recognize a prescribed rule, and further has a will flexible in
different directions, but conscious of the fart that, when the rule has been
prescribed by a superior, it does wrong to depart from the same. Such is
evidently the nature with which man is endowed.
5. Obligation is properly introduced into the mind of a man by a superior,
that is, a person who has not only the power to bring some harm at once upon
those who resist, but also just grounds for his claim that the freedom of
our will should be limited at his discretion. For when these conditions are
found in anyone, he has only to intimate his wish, and there must arise in
men's minds a fear that is tempered with respect, the former in view of his
power, the latter in consideration of the reasons, which, were there no
fear, must still induce one to embrace his will. For whoever is unable to
assign any other reason why he wishes to impose an obligation upon me
against my will, except mere power, can indeed frighten me into thinking it
better for a time to obey him, to avoid a greater evil; but, once that fear
is removed, nothing further remains to prevent my acting according to my
will rather than his. Conversely, if he has indeed the reasons which make it
my duty to obey him, but lacks the power of inflicting any harm upon me, I
may with impunity neglect his commands, unless a more powerful person comes
to assert the authority upon which I have trampled. Now the reasons why one
may rightly demand that another obey him are: in case some conspicuous
benefits have come to the latter from the former; or if it be proved that he
wishes the other well, and is also better able than the man himself to
provide for him, and at the same time actually claims control over the
other; and finally if a man has willingly subjected himself to another and
agreed to his control.
6. But that the law may exert its power in the minds of those for whom it is
made, knowledge both of the lawgiver and of the law itself is required. For
no man will be able to yield obedience, if he knows neither whom he ought to
obey, nor to what he is obligated. And as for the lawgiver, knowledge of him
is very easy. For the natural laws, as the light of reason assures us, have
the same author as the universe. And the citizen cannot fail to know who has
authority over him. How the natural laws are made known, will be explained
presently. Civil laws come to the knowledge of subjects by public and
explicit promulgation. In this two things must be dear: that the law has as
its author him who has the highest authority in the state; and also what is
the meaning of the law. The former point is established, if the sovereign
shall promulgate the law by his own lips, or sign them with his own hand, or
if this be done by his ministers. The authority of the latter it is idle to
question if it is clear that this function is connected with the office
which they fill in the state, and that they are regularly employed for the
same purpose; further if the laws in question are for the guidance of the
courts, and if they contain nothing derogatory to the sovereign authority.
As for the meaning of the law, that this may be rightly understood, it is
incumbent upon those who promulgate them to use the utmost clearness. Should
any obscurity be found in the laws, an interpretation must be sought from
the lawgiver, or from those who are publicly ordained to render justice in
accordance with the laws.
7. Every perfect law has two parts: one defining what is to be done, or not
done; the other indicating what punishment is in store for him who neglects
what is enjoined and does what is forbidden. For on account of the depravity
of human nature, prone as it is to the forbidden, it is superfluous to say
"Do this!" if there is no punishment in store for the non-doer. And it is
equally absurd to say "You will pay the penalty," if the reason which merits
punishment has not preceded. Accordingly all the force of a law consists in
the declaration of what our superior wishes us to do or not do, and of the
penalty which has been fixed for transgressors of the law. But the power to
oblige, that is, to impose an inward necessity, and the power to force or
compel by penalties to observe the law, resides exclusively in the lawgiver,
and in him to whom has been committed the maintenance and execution of the
laws.
8. Whatever is enjoined upon a man by the laws ought not only to be within
his powers, for whom they are made, but should also bring some advantage
either to the man himself or to others. For as it would be absurd and cruel
to attempt-under threat of a penalty to exact from a man what is and has
always been beyond his powers, so it is idle to constrain the natural
freedom of the will, if no advantage for anybody be derived therefrom.
9. Moreover, although regularly a law embraces all the lawgiver's subjects
to whom the content of the law applies, and whom the lawgiver did not from
the beginning wish exempt, it nevertheless sometimes happens that a man is
expressly released from the obligation of a law. And this is called
dispensation. But he only can dispense to whom belongs the power of enacting
and abrogating a law; and pains too must be taken that the authority of the
laws be not undermined by promiscuous dispensation granted without the
weightiest reasons, and thus occasion be given for jealousy and indignation
among the subjects.
10. Very different from dispensation, however, is equity, a correction of a
defect in the law due to its universality, or a skillful interpretation of
the law, showing by the natural reason that a particular case is not
included under the general law, since otherwise some absurdity would result.
For because it is impossible either to foresee or state all cases on account
of their infinite variety, the judges, whose task it is to apply general
enactments of the laws to particular cases, are bound to except from the law
the kind of cases which the lawgiver would himself have excepted, were he
present, or had he foreseen such instances.
11. Again, from their relation to the moral standard and their agreement
with it human actions gain certain qualifying terms. As for the actions in
regard to which the law ordains nothing in either direction, they are called
legitimate or permitted. Sometimes, to be sure, in the civil life, in which
not everything can be cut back to the quick, those acts also are called
legitimate against which no punishment has been ordained in the human court,
though in themselves they are repugnant to natural goodness. Also, actions
in agreement with law are called good, if not in harmony therewith, bad. But
for an action to be good, it must in every way agree with the law; to be
bad, it is enough that it be defective at a single point.
12. Justice, however, is sometimes an attribute of actions, sometimes of
persons. When justice is attributed to a person, it is commonly denned as
the "constant and perpetual will to render to every man his due."[3] For he
who delights in doing just deeds, who is devoted to justice, who in
everything endeavors to do what is just, is called a just man. On the other
hand the unjust is he who neglects to give every man his due, or thinks the
measure must be not that of his duty, but of present advantage. Consequently
not a few of the just man's acts may be unjust, and conversely. For the just
man acts justly on account of the precept of the law, but unjustly only
through weakness, while the unjust acts justly on account of the penalty
annexed to the law, and unjustly from an evil character.
13. But when justice is predicated of actions, there is merely a proper
application of these to the person. And a just action is one which from
deliberate choice, that is, by a knowing and willing agent, is applied to
the person to whom it is due. Hence the justice of acts differs from their
goodness especially in this, that the latter merely indicates conformity to
law, while justice involves in addition a regard for those toward whom the
action goes out. For this reason justice is also defined as virtue in
relation to another.
14. On the division of justice there is no agreement. The generally received
division is into universal and particular. We speak of the former, when any
duty whatever is practiced toward others, even that which could not be
exacted by force or by suit at law; of the latter, when a man receives just
what he could by rights demand. And this is again divided into distributive
justice and commutative justice. The former rests upon a compact entered
into between a society and its members concerning the pro rata sharing of
profit and loss. The latter rests upon a bilateral contract in regard
especially to things and acts connected with trade.
15. Having learned what justice is, it is easy to conclude what injustice
is. But here one must observe that an unjust act, undertaken after
premeditation, and violating what is by perfect right due another, or what
he possessed by the same right, -- no matter whence obtained, -- that act is
properly called an injury. And this happens in three ways: if one is refused
a thing which he could by his own right demand (not if something was due him
out of mere humanity, or some such virtue); or if that is taken away from
him which he rightly held, by a title valid against the aggressor; or if we
inflict upon another some harm which we had not the right to inflict. For an
injury, moreover, premeditation is required, and malice on the part of the
doer. Failing this, harming another is called an accident or a fault, more
or less serious, according to the seriousness of the thoughtlessness and
neglect, in consequence of which the encounter occurred.
16. With respect to its author, the law is divided into divine and human,
the one enacted by God, the other by men. But if law be considered according
as it has a necessary and universal adaptation to men or not, it is divided
into the natural and the positive. The former is so adapted to the rational
and social nature of man, that an honorable and peaceful society cannot
exist for mankind without it. Consequently it can be investigated and
learned as a whole, by the light of man's inborn reason and a consideration
of human nature. The latter kind of justice by no means flows from the
common condition of human nature, but proceeds from the decision of the
lawgiver alone. And yet it ought not to lack its own reason, and the utility
which it effects for certain men or a particular society. But while the
divine law is now natural and now positive, human law is, in the strict
sense, altogether positive.
______
CHAPTER III
On Natural Law
1. What is the character of the natural law, what its necessity, and of what
precepts it consists in the present state of mankind, are most clearly seen,
after one has thoroughly examined the nature and disposition of man. For,
just as for an accurate knowledge of civil laws, it is very important to
have a clear understanding of the condition of the state, and of the habits
and interests of its citizens, so if we have examined the common disposition
of men and their condition, it will be readily apparent upon what laws their
welfare depends.
2. Now man shares with all the animals that have consciousness the fact that
he holds nothing dearer than himself, and is eager in every way to preserve
himself; that he strives to gain what seem to him good things, and to reject
the evil. This feeling is regularly so strong that all the others give way
to it. And one cannot but resent it, if any man make an attack upon one's
life, so much so that, even after the threatened danger has been averted,
hatred usually still remains, and a desire for vengeance.
3. But in one respect man seems to be in a worse state even than the brutes,
-- that scarcely any other animal is attended from birth by such weakness.
Hence it would be a miracle, if anyone reached mature years, if he have not
the aid of other men, since, as it is, among all the helps which have been
invented for human needs, careful training for a number of years is
required, to enable a man to gain his food and clothing by his own efforts.
Let us imagine a man brought to maturity without any care and training
bestowed upon him by others, having no knowledge except what sprang up of
itself in his own mind, and in a desert, deprived of all help and society of
other men. Certainly a more miserable animal it will be hard to find.
Speechless and naked, he has nothing left him but to pluck herbs and roots,
or gather wild fruits, to slake his thirst from spring or river, or the
first marsh he encountered, to seek shelter in a cave from the violence of
the weather, or to cover his body somehow with moss or grass, to pass his
time most tediously in idleness, to shudder at any noise or the encounter
with another creature, finally to perish by hunger or cold or some wild
beast. On the other hand, whatever advantages now attend human life have
flowed entirely from the mutual help of men. It follows that, after God,
there is nothing in this world from which greater advantage can come to man
than from man himself.
4. Yet this animal, though so useful to his kind, suffers from not a few
faults, and is endowed with no less power to injure; which facts make
contact with him rather uncertain, and call for great caution, that one may
not receive evil from him instead of good. First of all, there is generally
a greater tendency to injure found in man than in any of the brutes. For the
brutes are usually excited by the desire for food and for love, both of
which, however, they can themselves easily satisfy. But having stilled that
craving, they are not readily roused to anger or to injure people, unless
someone provokes them. But man is an animal at no time disinclined to lust,
and by its goad he is excited much more frequently than would seem necessary
for the conservation of the race. And his belly desires not merely to be
satisfied, but also to be tickled, and often craves more than nature is able
to digest. That the brutes should not need clothing nature has provided. But
man delights to clothe himself, not for necessity only, but also for
display. Many more passions and desires unknown to the brutes are found in
man, as the desire to have superfluities, avarice, the love of glory and
eminence, envy, emulation, and rivalry of wits. Witness the fact that most
wars, in which men clash with men, are waged for reasons unknown to the
brutes. And all these things can, and usually do, incite men to desire to
injure one another. Then too there is in many a notable insolence and
passion for insulting their fellows, at which the rest, modest though they
be by nature, cannot fail to take offense, and gird themselves to resist,
from the desire to maintain and defend themselves and their freedom. At
times also men are driven to mutual injury by want, and the fact that their
present resources are insufficient for their desires or their need.
5. Moreover men have in them great power for the infliction of mutual
injuries. For though not formidable because of teeth or claws or horns, as
are many of the brutes, still manual dexterity can prove a most effective
means of injury; and shrewdness gives a man the opportunity to attack by
cunning and in ambush, where the enemy cannot be reached by open force.
Hence it is very easy for man to inflict upon man the worst of natural
evils, namely death.
6. Finally, we must also consider in mankind such a remarkable variety of
gifts as is not observed in single species of animals, which, in fact,
generally have like inclinations, and are led by the same passion and
desire. But among men there are as many emotions as there are heads, and
each has his own idea of the attractive. Nor are all stirred by a single and
uniform desire, but by one that is manifold and variously intermixed. Even
one and the same man often appears unlike himself, and if he has eagerly
sought a thing at one time, at another he is very averse to it. And there is
no less variety in the tastes and habits, the inclinations to exert mental
powers, -- a variety which we see now in the almost countless modes of life.
That men may not thus be brought into collision, there is need of careful
regulation and control.
7. Thus then man is indeed an animal most bent upon self-preservation,
helpless in himself, unable to save himself without the aid of his fellows,
highly adapted to promote mutual interests; but on the other hand no less
malicious, insolent, and easily provoked, also as able as he is prone to
inflict injury upon another. Whence it follows that, in order to be safe, he
must be sociable, that is, must be united with men like himself, and so
conduct himself toward them that they may have no good cause to injure him,
but rather may be ready to maintain and promote his interests.
8. The laws then of this sociability, or those which teach how a man should
conduct himself, to become a good member of human society, are called
natural laws.
9. So much settled, it is clear that the fundamental natural law is this:
that every man must cherish and maintain sociability, so far as in him lies.
From this it follows that, as he who wishes an end, wishes also the means,
without which the end cannot be obtained, all things which necessarily and
universally make for that sociability are understood to be ordained by
natural law, and all that confuse or destroy it forbidden. The remaining
precepts are mere corollaries, so to speak, under this general law, and the
natural light given to mankind declares that they are evident.
10. Again, although those precepts have manifest utility, still, if they are
to have the force of law, it is necessary to presuppose that God exists, and
by His providence rules all things; also that He has enjoined upon the human
race that they observe those dictates of the reason, as laws promulgated by
Himself by means of our natural light. For otherwise they might, to be sure,
be observed perhaps, in view of their utility, like the prescriptions of
physicians for the regimen of health, but not as laws; since these of
necessity presuppose a superior, and in fact one who has actually undertaken
the direction of another.
11. But that God is the author of the natural law, is proved by the natural
reason, if only we limit ourselves strictly to the present condition of
humanity, disregarding the question whether his primitive condition was
different from the present, or whence that change has come about. The nature
of man is so constituted that the race cannot be preserved without the
social life, and man's mind is found to be capable of all the notions which
serve that end. And it is in fact clear, not only that the human race owes
its origin, as do the other creatures, to God, but also that, whatever be
its present state, God includes the race in the government of His
providence. It follows from these arguments that God wills that man use for
the conservation of his own nature those special powers which he knows are
peculiarly his own, as compared with the brutes, and thus that man's life be
distinguished from the lawless life of the brutes. And as this cannot be
secured except by observing the natural law, we understand too that man has
been obliged by God to keep the same, as a means not devised by will of man,
and changeable at their discretion, but expressly ordained by God Himself,
in order to insure this end. For whoever binds a man to an end, is
considered to have bound him also to employ the means necessary to that end.
And besides, we have evidence that the social life has been enjoined upon
men by God's authority, in the fact that in no other creature do we find the
religious sentiment or fear of the Deity, -- a feeling which seems
inconceivable in a lawless animal. Hence in the minds of men not entirely
corrupt a very delicate sense is born, which convinces them that by sin
against the natural law they offend Him who holds sway over the minds of
men, and is to be feared even when the fear of men does not impend.
12. The common saying that that law is known by nature, should not be
understood, it seems, as though actual and distinct propositions concerning
things to be done or to be avoided were inherent in men's minds at the hour
of their birth. But it means in part that the law can be investigated by the
light of reason, in part that at least the common and important provisions
of the natural law are so plain and clear that they at once find assent, and
grow up in our minds, so that they can never again be destroyed, no matter
how the impious man, in order to still the twinges of conscience, may
endeavor to blot out the consciousness of those precepts. For this reason in
Scripture too the law is said to be "written in the hearts" of men.[4]
Hence, since we are imbued from childhood with a consciousness of those
maxims, in accordance with our social training, and cannot remember the time
when we first imbibed them, we think of this knowledge exactly as if we had
had it already at birth. Everyone has the same experience with his mother
tongue.
13. Of the duties incumbent upon man in accordance with natural law the most
convenient division seems to be according to the objects in regard to which
they are to be practiced. From this standpoint they are classified under
three main heads: the first of which instructs us how, according to the
dictate of sound reason alone a man should conduct himself toward God, the
second, how toward himself, the third, how toward other men. Although those
precepts of natural law which concern other men may be derived primarily and
directly from sociability, which we have laid down as a foundation,
indirectly also the duties of man to God as creator can be derived from the
same, since the ultimate confirmation of duties toward other men comes from
religion and fear of the Deity, so that man would not be sociable either, if
not imbued with religion; and since reason alone cannot go further in
religion than in so far as the latter subserves the promotion of peace and
sociability in this life. For, in so far as religion promotes the salvation
of souls, it proceeds from a special divine revelation. But duties of man to
himself spring from religion and sociability conjointly. For the reason why
he cannot determine certain acts concerning himself in accordance with his
own free will, is partly that he may be a fit worshiper of the Deity, and
partly that he may be a good and useful member of human society.
______
CHAPTER IV
On the Duty of Man toward God, or Natural Religion
1. The duty of man toward God, so far as it can be investigated by the
natural reason, reduces itself to two heads: that we have right views of
God, and secondly that we order our acts in conformity with His will. Hence
natural religion consists of propositions both theoretical and practical.
2. Among the views which every man must hold of God, he should first of all
be persuaded that He exists, that is, that there really is some highest and
first Being, upon whom this universe depends. The philosophers have most
clearly demonstrated this by the subordination of causes, which demand their
ultimate resting in a First; also by motion and by contemplation of the
machinery of the universe, and similar arguments. And if any man shall deny
that he can understand these, he does not on that account find excuse for
his atheism. For as the whole human race has been in perpetual possession of
that belief, it would be necessary, if anyone wished to attack it, not only
to destroy utterly all the arguments by which the existence of God is
proved, but also to produce more plausible reasons for his assertion.
Likewise since it has been hitherto believed that the welfare of the human
race depends upon that conviction, the man would have further to show that
the race is better served by atheism than by retaining a sane cult of the
Deity. This being impossible, the impiety of those who venture to attack
that belief in any way is detestable and to be most severely punished.
3. The second truth is that God is founder of this universe. For since
reason makes it clear that all those things did not exist of themselves, it
must be that they have some first cause. And this is just what we call God.
Consequently they are deceived who from time to time noisily talk of Nature
as the ultimate cause of all things and all effects. For if by that term we
understand that power of effecting and acting which is seen in things, that
in itself certainly is an argument for its author, namely God: so impossible
is it for Nature's power to enable us to deny God. If however by Nature is
meant the ultimate cause of everything, it is a kind of profane
fastidiousness to avoid the plain and received term, God. They too are in
error who believe that God is some one of the things which impinge upon our
senses, and especially the stars. For their very substance declares that all
of these are no first thing, but sprung from another. Not less unworthy is
their view of God who call Him the soul of the world. For whatever the soul
of the world may be, it denotes a part of the world, and how could part of a
thing have been its cause, that is, an antecedent? But if by soul of the
world we mean that first invisible being upon which depends the force and
morion of all things, then in place of a clear term we are substituting one
that is obscure and figurative. Hence also it is evident that the world is
not eternal; for that is incompatible with the nature of that which has a
cause. And he who asserts the eternity of the world, denies it any possible
cause, and thus denies God Himself.
4. The third maxim is that God rules over the whole world, and over the
human race. This is perfectly clear from the wonderful and constant order
seen in this universe. But so far as the moral effect is concerned, it is
immaterial whether one denies that God exists, or that he governs the
affairs of men, since either view completely destroys all religion. For it
is vain to fear or venerate him who, though in himself preeminent, is not
touched by any care for us, and will not, or cannot, bring us any good or
ill.
5. The fourth principle is that no attribute involving any imperfection
applies to God. For as He is the cause and origin of all things, it would be
absurd for some creature of His to have the power to conceive of a
perfection which God lacked. More than that, His perfection being infinitely
beyond the capacity of so petty a creature, it will be proper to express it
in negative rather than in positive terms. Hence we must by no means apply
to God those terms which connote something finite or determinate, since the
finite can always be matched by a greater. And every determination and
figure involves boundaries and a delimitation. In fact we are not to say
that He is distinctly and plainly comprehended or conceived by our
imagination, or any other faculty of our soul, since whatever we are able to
conceive distinctly and fully, is finite. Nor do we hold in mind a complete
concept of God, because we call Him infinite, inasmuch as infinite does not
properly denote anything in the thing itself, but powerlessness in our mind,
just as if we should say that we do not understand the magnitude of His
being. Hence one cannot say either that God has parts, or is a whole, since
these are the attributes of the finite; nor that He is contained in some
place, for this implies bounds and limits to His greatness; nor that He
moves, or is at rest, for both of these suppose being in a place. So also we
cannot properly attribute to God anything which indicates a pain or a
passion, for instance anger, repentance, pity. I say properly, for where we
read of such attributes of God, it stands for the effect, in terms of man's
feelings, not for the passion itself. The same is true of all that indicates
the need and absence of some good thing, for example, craving, hope,
concupiscence, sensual love. For these involve want, and so imperfection,
since we could not understand craving, hoping, and desiring, except in
relation to things one needs or lacks. So too when one ascribes to God
intellect, will, knowledge, and acts of sense, as seeing or hearing, these
are to be understood as on a far higher plane than are the same things in
ourselves. For will is the appetite of the reason; but an appetite
presupposes absence and need of the corresponding thing. And intellect and
sensation in man involve passion, impressed by objects upon the organs of
the body and the powers of the soul; which is a proof of a power dependent
upon another, and hence not the most perfect. Finally this also is
inconsistent with divine perfection, to say that there are more gods than
one. For aside from the fact that the marvelous harmony of the world proves
that it has but a single ruler, God would also be limited, if there were
several of equal power, not dependent upon Himself. Just so the existence of
a number of infinites would involve a contradiction. Such being the case, it
is most in harmony with reason, in expressing as best we may the attributes
of God, to use words that are either negative, as infinite,
incomprehensible, immense, eternal, viz., lacking end and beginning; or
superlative, as best, greatest, most powerful, wisest, etc.; or else
indefinite, as good, just, Creator, King, Lord, etc., with the understanding
that we wish not so much to tell distinctly what He is, as to declare our
wonder and obedience by some sort of an expression. And this is the sign of
a mind that is humble, and honors to the best of its ability.
6. The practical propositions of natural religion have to do partly with the
internal and partly with the external cult of God. The inward cult of God
consists in honoring Him. And honor is the idea one has of another's power
and goodness combined. On considering God's power and goodness, man must
naturally conceive the utmost possible veneration of Him. Whence flows the
obligation to love Him, as the author and giver of every good; to hope in
Him, upon whom we believe that all our happiness, for the future too,
depends; to rest content with His will, who in His goodness does all things
well, and gives us what is most expedient for us; to fear Him, as most
powerful, to offend whom is to incur the greatest punishment; finally in all
things most humbly to obey Him, as Creator, Lord, and best and greatest
Ruler.
7. The external cult of God consists especially in these things: returning
thanks to God for so many blessings received from Him; expressing His will
in one's acts, so far as possible, in other words, obeying Him; admiring and
celebrating His greatness; offering prayers to Him, to obtain blessings and
avert evils, since prayers are signs of hope, and hope the recognition of
divine goodness and power. Further, swearing, if the occasion arises, by God
alone, and observing one's oath most religiously, since this is required by
God's omniscience and power. Also speaking of God with reserve, since that
is a sign of fear, and fear a confession of power. It follows that we must
not use the name of God rashly and in vain, both of which are unreserved;
and that we must not swear where there is no need, as that is to no purpose;
also that we should not argue curiously and impertinently in regard to the
nature and government of God, for the only inference is that we wish to
measure God by the standard of our reason. Another [duty of the external
cult is] taking care that whatever is rendered to God be the best of its
kind, and fitted to express the honor paid Him; another, worshiping God not
only in private, but also openly and publicly in the sight of men. For
concealing an act is as it were blushing to do it. On the other hand the
public cult, besides testifying to our devotion, encourages others by our
example. Finally, one should use every effort to keep the natural laws. For
as holding God's authority in low esteem is worse than any insult, so
conversely obedience is more acceptable than any sacrifice.
8. So much is indeed certain, that the effect of this natural religion,
precisely considered, and with regard to man's present condition, is limited
to the sphere of this life, and is of no avail to secure eternal salvation.
For human reason, if left to itself, does not know that the depravity which
is seen in man's faculties and inclinations came through human sin, and
deserves the anger of God and eternal destruction. Hence too the necessity
of a Saviour is hidden from the reason, as also His service and merit,
likewise the promises of God, given to the human race, and whatever else
depends upon these, -- the things through which alone eternal salvation is
gained for men, as is known from the Scriptures.
9. Moreover it will be worth while to estimate a little more clearly the
advantage which religion contributes to human life, that we may establish
the fact that it is in truth the ultimate and strongest bond of human
society. For in the natural liberty, if you take away the fear of the Deity,
as soon as a man has confidence in his own powers, he will at his own
caprice undertake anything against the weaker, and will consider honor,
shame, good faith, as empty words; and will not be forced to do right except
by a sense of his own weakness. Again, remove religion, and the internal
stability of states would always be uncertain, and fear of temporal
punishment, a promise given to superiors, the glory to be gained by keeping
the same, gratitude because men have been rescued from the miseries of the
natural state by the help of the government, -- none of these would suffice
to hold citizens to their duty. For to that situation we could in truth
apply the saying: "He who knows how to die, can never be forced."[5] For
those who fear not God can fear nothing more than death. If one should have
the hardihood to despise the latter, he could attempt anything against the
rulers. And a reason for such a desire would scarcely be lacking; for
example, in order to avoid the inconveniences which seem to fall upon one
from the rule of another; or to gain for one's self those advantages which
attend the possessor of powers; especially since one may easily think he is
right in doing so, either because the man now in power seems to misgovern
the state, or because the other hopes he will himself rule far better. And
then an opportunity for such attempts might easily present itself, when the
king fails to hedge his life about with sufficient caution (and in such a
situation "who is to guard the guards themselves?"[6]) ; or when many
conspire, or when in the midst of a foreign war enemies are made
accomplices. Furthermore, citizens would be very prone to injure each other.
For, as in the civil court judgment is rendered according to acts and things
proved, all crimes and outrages from which profit is likely to be derived,
would be regarded as cleverness, to be viewed with complaisance, if they
could be done in secret and without witnesses. Also no one would do the
works of pity or of friendship, except with the assurance of fame or
emolument. Another consequence would be that, so long as no one could place
any firm confidence in the integrity of another, were the divine punishments
removed, individuals would live a life of perpetual anxiety and suspicion,
fearing to be deceived or injured by others. Moreover rulers as well as
subjects would be little inclined to do noble and glorious acts. For the
rulers, fettered by no bonds of conscience, would treat all offices and
Justice herself as venal, and seek in all things their personal advantage,
involving the oppression of the citizens. They would also fear a rebellion
on the part of the latter, and would accordingly understand their own safety
to depend entirely upon weakening them as far as possible. Conversely, the
citizens, fearing oppression from their rulers, would be always casting
about for an opportunity to rebel, and yet would be no less mutually
distrustful and fearful of each other. Even husbands and wives, if a
trifling quarrel occurred, would mutually suspect that they were to be
killed by poison, or some other secret method. An equal danger from one's
household would impend. For since, without religion, there would also be no
conscience, it would be difficult to detect such crimes, as these are
usually disclosed through a restless conscience, and the terror which is
revealed in external signs. Hence it is clear how much it is to the
advantage of the human race to block all the ways of atheism, that it may
not grow strong; also how great madness pursues those who assert that it is
of service in winning a reputation for civic wisdom, if they appear inclined
to impiety.
______
CHAPTER V
On the Duty of Man toward Himself
1. Although a deeply implanted self-love constrains a man to exercise
anxious care of self, and to take thought in every way for his own
interests, so that it would seem superfluous to invent any obligation in
this respect, still in another way man is obliged in any case to observe
certain things concerning himself. For man was not born for himself alone,
but equipped with such remarkable endowments by the Creator, that he may
glorify Him, and become a fit member of human society. Consequently he is
bound so to order himself that he do not suffer the Creator's gifts to
perish from neglect, and that he contribute his due share to human society.
Thus, although lack of education is a reproach and a loss chiefly to one's
self, the master does well to chastise his pupil, if he neglects to learn
arts of which he was capable.
2. Again, man consists of two parts, soul and body, of which the one
performs the function of a ruler, the other that of a servant or instrument,
so that we use the authority of the mind, the servitude of the body. Hence
both must indeed be cared for, but especially the former. And the mind must
first of all be molded fitly to endure the social life, and imbued with a
sense and a love of duty and honor. Then, in accordance with the capacity
and station of the individual, something more must be learned, that a man
may not be a useless cumberer of the ground, of no profit to himself, an
annoyance to others. Moreover, one must in due time choose an honorable
calling in life, according to the prompting of one's bent, or as determined
by bodily and mental ability, birth, fortune, parental authority, command of
the civil authorities, opportunity, or necessity.
3. Furthermore, since the mind is upheld by the body, the powers of the
latter must therefore be strengthened and conserved by suitable food and
labors, and not injured by intemperance in eating and drinking, untimely and
unnecessary labor, or any other means. Hence one must avoid gluttony,
drunkenness, excess in love, and the like. And since disordered and violent
passions are not only an incentive to disturb society, but also greatly
injure the man himself, one must consequently take pains to restrain one's
passions so far as possible. And because many dangers can be repelled, when
one faces them courageously, faintness of heart must be banished, and the
mind steeled against the fear of danger.
4. Besides, no man has given himself life, which must rather be accounted a
gift of God. Hence it is evident that man by no means has power over his own
life, to such an extent that he may at his own discretion cut it off; that,
on the contrary, one must wait in any case, until one is called away by Him
who stationed us at this post. However, since a man can by his efforts serve
others, and is bound to do so, and since a certain kind of work, or a more
intense labor, wastes his strength so much as to bring old age and the end
of life upon him more promptly than if he had lived a life of ease, it seems
in every way justifiable for him to choose what will probably cause a
shorter life, in order that he may lavish the benefit of his talent upon
others. And again, as frequently the life of many cannot be saved, unless in
their behalf others expose themselves to the probable risk of death, the
legitimate ruler could enjoin upon a citizen under threat of gravest
punishment, not to avoid such a danger by flight. Even on one's own
authority it will be permissible to run such risk, if only weightier reasons
do not hold us back, and there is hope that it will bring safety to others,
and these are worthy to be ransomed at such a price. For it would be foolish
vainly to join company with another who is to perish, or, being an
extraordinary man, to meet death for a worthless one. For the rest, however,
natural law does not appear at all to enjoin that any man prefer the life of
any other to his own; but other things being equal, each man is permitted to
be his own nearest neighbor. But those who in weariness of the annoyances
which commonly attend human life, or in protest against misdeeds which would
not have made human society ashamed of them, or in fear of pains which might
have been bravely endured, a helpful example for others; or those who with
an empty display of loyalty or courage throw away their own lives, -- all
these are certainly to be thought sinners against the natural law.
5. But frequently self-preservation, which a most sensitive instinct and
reason commend to man, seems to conflict with the precept of sociability;
namely, when our safety is so endangered by another that either we must
suffer death or some serious disadvantage, or else the other must be
repelled to his hurt. Therefore we must now explain how far self-defense is
to be tempered with restraint. Now self-defense takes place either without
injury to him who threatens evil to us (i.e., while we let him see that an
attack upon us is a dubious or a fearsome thing), or with injury to him, or
even death. The former method is undoubtedly permissible and free from any
guilt
6. As for the second method, however, scruple can arise, since the human
race seems to suffer an equal loss, whether my assailant is killed, or I
myself perish; and because I must in any event destroy an image of myself,
with whom I am bound to maintain the social life; and, once more, because a
violent defense seems to cause a greater disturbance than if I either take
to flight, or yield my body submissively to my assailant. But all these
arguments do not make this kind of defense at all illegal. For in order that
my conduct toward a man be peaceful and friendly, it is required that, in
his attitude toward me, he show himself a fit person to receive attentions
from me. And since the law of sociability looks to the safety of men, it
must be so interpreted as not to destroy the safety of individuals. Hence
when another threatens me with death, there is no law which commands me to
betray my own safety, that another's malice may attack me with impunity. And
whoever in such a case is hurt or killed, has reason to blame his own
perversity, which put upon me that necessity. Otherwise, in fact, all the
good things which nature or industry has gained for us would have been given
to us for nothing, if it were not permitted to offer violence to another who
unjustly descends upon them. And the good would be exposed as a ready prey
to the bad, if they must never offer them violence. Hence to proscribe
utterly forcible self-defense, would be the destruction of the human race.
7. Yet, when injury is threatened, one may not always fly to extreme
measures; but the safer must first be tried, for instance, allowing my
assailant no access to me, shutting myself up behind walls, warning him to
desist from his madness. So too it is the part of prudence, to practice
patience in a slight injury, if it can conveniently be done, and to waive
some of one's rights, rather than expose one's self to a greater danger by
untimely resistance to force, especially when the thing attacked is one
which can easily be repaired or made good. But when my safety cannot be
secured by this or any such method, it will be permissible to try even
extreme measures to that end.
8. But to decide clearly whether a man has kept within the bounds of
blameless defense, we have first to consider whether he lives in natural
freedom, not subject to any mortal, or on the other hand is responsible to
civil authority. In the former condition, when another insists upon
inflicting an injury, and is unwilling to be moved to repentance for his
base attempt, and to be at peace with me as before, then I shall be able to
repel him even with bloodshed; and this not only if he attack my life, but
also if he attempt to wound or merely to hurt me, or even to steal, without
injury of person. For I have no security that he will not pass from these to
greater injuries; and he who shows himself a public enemy is protected by no
further rights from being repelled by me in any way whatever. And life would
indeed be unsocial, if it were not permitted to employ extreme measures
against him who does not cease to pile up moderate injuries. For on that
basis the most inoffensive would be the perpetual mockery of the worst.
Furthermore, in this condition of natural liberty, I cannot only repel a
danger threatened for the present, but also, that averted, I can pursue the
assailant until I have secured myself against him for the future. With
regard to this security, we must hold that, if a man after inflicting an
injury is moved to spontaneous repentance, asks pardon, and offers
compensation for the loss, I am bound to accept his word and be reconciled
to him. For to repent of one's own motion and ask pardon, is a strong
indication of a change of character. But if a man shows penitence only when
his powers of resistance fail, it seems unsafe to trust his bare promise.
Therefore from such a man the power to injure must be taken away, or some
other bond must be imposed upon him, that henceforth he may not be
formidable to us.
9. On the other hand, those who are subjected to civil authority employ a
forcible self-defense lawfully only when time and place do not permit of
imploring the aid of a magistrate in repelling an injury by which life, or a
blessing as valuable as life, or irreparable, is brought into immediate
danger. That the danger may be averted, I say, and that only, whereas
vengeance and security against future offense shall be left to the
discretion of the magistrate.
10. Moreover I may undertake my defense as well against him who threatens my
life with malice aforethought, as against him who does so by mistake; for
example, if a man assaults me while insane or because he thought me another,
with whom he has a quarrel. For it is enough that the other have no right to
attack or kill me, and there be on my side no obligation to die in vain.
11. As for the time within which defense is right and proper, this view is
to be held: where both parties live in natural liberty, even though they
could presume, and ought to presume, that others would observe toward them
the duties of natural law, still, on account of the wickedness of human
nature, they are bound never to be so free from concern as not to surround
themselves with timely and legitimate defenses; for example, by blocking the
approach of those who have hostile designs, by getting together arms and
men, by winning allies, by closely watching the attempts of the others, and
by like measures. But that suspicion, arising from the common wickedness of
men, does not suffice to enable me, under pretext of self-defense, actually
to surprise my enemy by an armed attack, not even if I see his power growing
unduly, especially where he has increased it by harmless industry, or by the
favor of fortune, without oppressing others. More than that if a man show,
besides the ability also the wish to harm, and this not indeed against me,
but against a third party, I cannot for that reason at once venture to
attack him on my own account, unless I am bound by an agreement to aid the
other, who is being unjustly attacked by a more powerful man. It is
expedient to do this all the more promptly, if it be probable that, after
overpowering the other, he will turn to me also, and will use his former
victory as a means to the next. But where it is quite clear that the other
is already planning an attack upon me, even though he has not yet fully
revealed his intentions, it will be permitted at once to begin forcible
self-defense, and to anticipate him who is preparing mischief, provided
there be no hope that, when admonished in a friendly spirit, he may put off
his hostile temper; or if such admonition be likely to injure our cause
Hence he is to be regarded as the aggressor, who first conceived the wish to
injure, and prepared himself to carry it out. But the excuse of self-defense
will be his, who by quickness shall overpower his slower assailant. And for
defense it is not required that one receive the first blow, or merely avoid
and parry those aimed at him.
12. But in states no such ample room is allowed for self-defense. For here,
though one knows that a citizen is preparing to attack him, or else
scattering fierce threats, it will by no means be permitted to anticipate
him, but he must be reported to their common ruler, and security sought from
the same. But when a man is already being attacked by another, and reduced
to such straits that there is no opportunity to call for the aid of a
magistrate or other citizens, then only will it be permitted to repel
violence by employing extreme measures against the assailant; not indeed
with the intention of exacting vengeance for the wrong by bloodshed, but
because without such bloodshed life cannot be rescued from immediate danger.
Moreover, the beginning of the time within which one can kill another in
self-defense with impunity, is reckoned from the moment when the aggressor,
manifesting his wish to make an attack upon my life, and furnished with the
bodily powers and the instruments necessary to injure, is now on the spot
from which he can actually injure me, reckoning also that space which is
needed, if I prefer to anticipate, rather than to be anticipated. And yet,
on account of the mental excitement which such danger occasions, exceeding
the limits slightly is disregarded in the human court. Further, the time of
blameless self-defense lasts until the aggressor has been repelled, or has
of himself retired (whether because he was touched by penitence in the very
moment of his crime, or because his attempt met with no success), so that
for the present he can no longer injure, and we have the opportunity to
withdraw to a place of safety. For vengeance for an assault, and security
for the future, concern the responsibility and power of the civil authority.
13. But although it has been said that it is not right to rush into
bloodshed when the danger can be repelled in a more convenient way, still on
account of the excitement which imminent danger commonly produces, it is not
usual to be over-particular. For one in the flutter of such danger may not
be so careful in surveying all the ways of escape, as the man who is
considering the subject with a mind unperturbed. And then, just as it is
rash to venture down from a safe place, to meet the challenger, so, if he
attacks me in an exposed situation, I am not expressly obliged to flee,
except perhaps when there is near by a refuge, to which I may betake myself
without danger. And I am not always obliged to retreat backwards. For then
one must expose his back, and the danger of a fall is both before and
behind; and once you have been forced from your position, it is difficult to
recover it again. Moreover, one is not excluded from the privilege of
self-defense by the fact that he has gone abroad to attend to his business,
whereas he would have been safe from all danger, if he had remained at home.
Yet the same privilege is not enjoyed by him who has been challenged by
another to a duel, and, upon presenting himself, is so hard put to it that,
unless he run the other through, he must himself perish. For since the laws
forbid one to run into that danger, no account is made of it to excuse
bloodshed.
14. The same concession is made for the defense of members of the body, as
for that of life. Consequently he too is held innocent who has killed an
assailant using force with the intention perhaps of mutilating merely a
member, or inflicting a serious wound. For we naturally shrink very much
from mutilation and a serious wound; and mutilation of a member, especially
one of the nobler, is at times appraised as nearly equal to loss of life
itself. In fact one cannot tell in advance, but death may be the result of
mutilation or wound; and such long-suffering goes beyond the common
self-possession of men, -- a patience to which the laws do not regularly
bind us, especially in favor of a wicked man.
15. Further, what is conceded in defense of life, is also accounted
permissible in behalf of chastity. For no greater insult can be offered a
respectable woman, than to attempt to take away against her will that virtue
whose preservation brings the highest esteem to her sex, and reduce her to
the necessity of rearing her offspring for a public enemy.
16. Again, the defense of property, at least among those who live in natural
liberty, can go so far as the death of the assailant, provided the
possessions are not such as to be contemptible. For certainly without
possessions our life cannot he preserved, and he who attacks our possessions
shows as hostile a spirit as he who assaults our life. But in states, where
stolen goods can be recovered by the help of a magistrate, this is not
regularly permitted, except in case the man who has come to steal our goods
cannot be brought to court. For this reason it is lawful to slay pirates and
burglars.
17. So much for self-defense in the case of those who are assaulted by
others without provocation. But the aggressor can rightly defend himself,
and in so doing injure the other a second time, if, after he has been moved
to repentance and has offered reparation and security against injury for the
future, the injured man in a harsh spirit rejects his offer and endeavors to
avenge himself with his own hand.
18. Finally self-preservation is so highly regarded, that, if it cannot be
obtained otherwise, in very many cases it is thought to exempt from the
obligation of the general laws. On this account necessity is said to know no
law. Naturally, since a man is impelled with such ardor to
self-preservation, it is difficult to assume that so strong an obligation
has been imposed upon him, that his own safety must give way before it. For,
though not only God, but also, if the seriousness of the matter requires,
the civil authority may be able to impose upon us so rigid an obligation
that death should be suffered rather than yield a hair's breadth therefrom,
we do not always assume that the obligation of the laws is so rigid. For
those who have promulgated these, or have introduced certain institutions
among men, wishing of course thereby to promote the safety or advantage of
men, are believed to have had regularly before their eyes the condition also
of human nature, and how impossible it is for man not to avoid and avert
whatever tends to his destruction. Hence regularly the laws, especially the
positive sort, and all human institutions, are considered to except the case
of necessity, in other words, not to oblige, when observance of them would
be attended by an evil destructive of human nature, or exceeding the common
endurance of men; unless even the case of necessity was included, either
expressly, or on account of the nature of the affair. Therefore necessity
does not indeed have the effect of making it possible for the law to be
directly violated and sin committed; but from the benevolence of lawgivers,
and also from a regard for human nature, it is presumed that the case of
necessity is not included under a law conceived in general terms. The matter
must be made dear by one or two examples.
19. Although otherwise a man has no right over his own members, to mutilate
or destroy them at discretion, he will however be permitted to cut off a
member attacked by an incurable disease, that the whole body may not perish,
or that parts still sound may not be involved, or that the use of other
members may not be hampered by a useless appendage.
20. If in case of shipwreck more persons have leaped into a boat than it can
carry, and the boat does not belong to one man by a particular right, it
seems that they must draw lots to see who shall be thrown overboard. And if
anyone shall refuse the hazard of the lot, he can be thrown into the water,
without casting his lot, as one who seeks the destruction of all.
21. If two fall into imminent danger of death, in which both must perish, it
is permitted one of them, in order to save himself, to do anything which may
hasten the death of the other, who would perish in any case. For example, if
I, a skilled swimmer, had fallen into deep water with another who was not,
and he threw his arms about me and held me, and I had not the strength to
carry him out of the water with me, I could get rid of him by force, in
order not to be drowned with him, even though I could hold him up somehow
for a short time. So in a shipwreck, when I have seized a plank that will
not hold two, if a man swimming up tries to throw himself on the same plank,
and is likely to destroy us both, I shall be able to push him off by any
force. So when an enemy threatens instant death to two fugitives, one can
leave the other in danger for his life, by closing a gate behind himself, or
by throwing down a bridge, if both cannot be saved together.
22. Necessity also gives us the right to expose another indirectly to the
danger of death or serious injury, it being no purpose of ours to harm him,
but only in the interest of self-preservation to undertake an act from which
harm probably can come to him; provided we prefer, however, to meet the
necessity of our case in any other way, and mitigate the injury itself so
far as in us lies. Thus, if a stronger pursues me, with designs upon my
life, and somebody happens to meet me in a narrow street, my necessary way
of escape, if, though admonished, he does not give way, or the limitations
of time or space do not admit of his doing so, I shall have a right to knock
him down, and continue my flight over his fallen body, even though it may
seem probable that he will be seriously hurt by the blow. All this, unless I
am bound to the man by special obligation, so that I ought actually to take
the risk for his sake. But if he who stands in the way of flight, is unable,
though admonished, to get out of the road, for example an infant or a lame
man, it will be at least excusable, if one tries to leap over him, rather
than expose one's own body to the enemy by delaying. On the contrary, if a
man insolently and inhumanly blocks me, and refuses to make way for me in my
flight, he can even be directly pushed and thrown down.
For the rest, those who suffer injury in such cases ought to bear the
misfortune as their destiny.
23. If a man, without fault of his own, is in extreme want of food and
clothing necessary against the cold, and has been unable, by prayers, or
purchase, or offer of service, to prevail upon others, who are richer and in
abundance, to let him have those things willingly, he may without the charge
of theft or robbery take them away by force or secretly; especially if he
shall have the intention of paying their estimated value, when occasion
shall offer. For the rich man ought, out of humanity, to succor one placed
in such straits. And although in general what is owed on the score of
humanity cannot be taken away forcibly, still extreme necessity has this
effect, that such things can be claimed no less than those due on the basis
of a perfect obligation. It is, however, required that the poor man first
try every means to meet his necessities with the consent of the owner; also
that the owner be not in the same straits, or likely soon to be reduced to
them. Further, there must be restitution, especially when the fortunes of
the other do not permit him to make any such free gift.
24. Finally the necessity which presides over our fortunes seems to bestow
upon us the permission to destroy the property of others; but with these
restrictions: that the danger to our property must have come about without
our fault; that it cannot be removed in a more convenient way; that we do
not destroy a more valuable thing belonging to another, to save ours, being
less precious; that we make good the value, if indeed the thing would not
otherwise have perished; or else we should share in the loss, if the other's
property would otherwise have perished along with ours, but now by its
sacrifice preserves ours. This principle of equity is usually followed by
admiralty law. So too, when a fire has broken out and is threatening my
house, it will be permissible to tear down my neighbor's house. provided
those whose houses have been thus saved make good their neighbor's loss pro
rata.
______
CHAPTER VI
On Mutual Duties, and First, That of Not Injuring Others
1. Next come the duties which a man must practice toward other men. Some of
them spring from the common obligation, by which the Creator willed that all
men as such should be bound together. But some flow from a definite
institution, introduced or received by men, or from a certain adventitious
status of men. The first are to be practiced by every man toward every
other; the second only toward certain persons, a certain condition or status
being assumed. Hence one may call the former absolute duties, the latter
conditional.
2. Among the absolute duties, i.e., of anybody to anybody, the first place
belongs to this one: let no one injure another. For this is the broadest of
all duties, embracing all men as such. It is also the easiest, as consisting
in mere refraining from action, unless the passions that resist reason have
somehow to be checked at times. Again, it is likewise the most necessary
duty, because without it the social life could in no way exist. For with the
man who confers no benefit upon me, who makes no interchange even of the
common duties with me, I can still live at peace, provided he injure me in
no way. In fact, from the vast majority of men we desire nothing more than
that. Benefits are generally exchanged by the few. But with the man who
injures me, I cannot by any means live peaceably. For nature has implanted
in each man so sensitive a love of self and one's own possessions, that one
cannot help repelling by every means the man who essays to injure them.
3. Moreover, this same duty is a bulwark not only to what a man has by
nature itself, for instance, life, body, members, chastity, freedom, but
also to all that has been acquired through some institution and convention
of men. Hence by this precept it is forbidden to carry off, spoil, injure,
or withdraw from our use, in whole or in part, anything that by any
legitimate title is ours. Consequently the same duty is understood to
interdict any crimes by which injury is inflicted upon others, as bloodshed,
wounding, beating, robbery. theft, fraud, violence, directly or indirectly,
mediately or immediately and the like.
4. It follows also that, if a man has been hurt by another, or a loss
inflicted in any way that can be properly laid to the other's charge, it
must so far as possible be made good by him. For otherwise it would be a
vain injunction, not to injure, or not to inflict loss, if the man who has
actually been injured must swallow his loss, and his assailant can in
security, and without refunding, enjoy the profit of the wrong he has done.
For human depravity will never refrain from mutual injuries, unless there is
the necessity of restitution. And it would be difficult for the man who has
suffered loss to make up his mind to live at peace with the other, so long
as he did not obtain reparation from him.
5. Although, properly speaking, loss appears to concern an injury to things,
the word is however understood by us here in a broad sense, to include every
injury, spoiling, diminishing, or taking away, of that which is already
ours; or intercepting of that which by a perfect right we ought to have,
whether this may have been given us by nature, or assigned us by act of man,
or by a law; or, finally, any omission or refusal on the part of another to
perform anything which he was bound to do for us in accordance with a
perfect obligation. But if things due us under an imperfect obligation
merely are intercepted, it is not considered that a loss has been inflicted,
which must be made good. For it would be unseemly to consider it a loss not
to have received, or to demand compensation for, such things as I could not
expect from another except as a voluntary gift, and things which I cannot
reckon my own, until I have received them.
6. Under the term loss, moreover, comes not only a thing of ours, or owed to
us, which is injured, destroyed, or intercepted, but also the fruits which
spring from it, whether they have been gathered in already, or are still
hoped for, provided the owner would have gathered them in. But we must
deduct the outlay necessary to the gathering in of the crops. Also the
valuation of anticipated crops is raised or lowered, according as they arc
nearer Ac uncertain outcome, or further from it. Finally also, whatever
flows later from an injury, as by natural necessity, is regarded as an
integral part of the damage.
7. It is moreover possible for a man to inflict toss upon another not only
immediately and of himself, bat also through others- And a loss caused
immediately by a man can be imputed to the other, because, by doing
something, or not doing something, he was bound to do, he has contributed to
that result. Sometimes, as between several who have concurred in the same
act, one is regarded as the principal cause, another as an accessory;
sometimes all are on an even footing. With regard to these, we must observe
that they are bound to make good the loss only in case they were realty the
cause of the loss, and were a factor in the whole loss, or a part thereof.
But when a man did not contribute any real assistance to that act itself
which occasioned the loss, and did not previously cause it to be undertaken,
and did not share in the profit, although at the time of the act he may
involve himself in some misdeed, still he will not be bound to make
restitution for Ac loss. Examples are, those who rejoice at others'
misfortunes, those who afterward praise or excuse the damage, and those who
beforehand hope it may happen, and approve or applaud at the time.
8. When several concur in a single act from which damage results, the first
responsibility will be his, who by his authority, or in some other way
involving constraint, urged others to act. The doer of the deed, if it was
not open to him to refuse his services, will be accounted a mere instrument.
Whoever without constraint has committed a crime will himself be responsible
first of all, and then the others who contributed to the crime; with this
reservation, that if the first in order have already made restitution, the
rest are exempt (which is not the case with penalties). If several have
committed a crime by conspiracy, they are collectively responsible for the
individuals, and individually for all their companions, so that if all are
arrested, each is bound to contribute his proper share to make good the
damage. Where only one is seized, and the rest escape, he will be bound to
pay for them all. But where some of those arrested are insolvent, the rich
ones will be responsible for the whole amount. If, however, several have
concurred in a crime without a conspiracy, and it can be clearly
distinguished how much each has contributed to the damage, each will be
bound to make good that part alone which was due to himself. But if one has
paid the whole amount, the rest are exempt from restitution.
9. Not alone the man who has injured another with malice aforethought, is
bound to make good the damage, but also he who, without direct intention,
has done so through neglect, or a fault which it was easy to avoid. For it
is not the smallest part of sociability, to act so circumspectly that our
intercourse does not become formidable or insufferable to others. And then,
in consequence of a particular obligation, one is often required to use
extraordinary diligence. In fact even the slightest fault can suffice to
require restitution, provided the nature of the matter does not actually
resent, as it were, the most exact diligence; or if the blame does not
belong rather to the man who suffers the damage, than to him who causes it;
or unless great excitement, or the circumstances of the case, do not admit a
studied circumspection; for example, if one, while brandishing his arms in
the heat of battle, should injure a man standing near him.
10. But whoever injures by mere chance, and without his own fault is not
bound to make restitution. For nothing having been committed which can be
laid to the man's charge, there is no reason why the unwilling agent should
atone for an evil that was destined to happen, rather than the other, who
has suffered it.
11. Another precept in agreement with natural equity is that, if my man has
caused damage to another without my fault, I should make it good to the
injured party, or surrender my man to him. For a slave is of course
naturally liable for reparation of damage he has caused. But since he has no
property of his own, from which reparation may be made, and his person
belongs to the master, it is surely right that the master should either mend
the damage or surrender the slave. For otherwise a slave would be given
license to injure any persons at his pleasure, if damages could not be
recovered either from himself, who has nothing, not even himself, or from
his master. For if, on account of an injury, a master is ever so willing to
punish the slave with blows or imprisonment, the injured cannot possibly be
satisfied thereby.
12. The same principle also seems to be right with regard to our animals,
that when, even without our fault, and being of themselves excited contrary
to the nature of their kind, they have caused damage to another man, the
master should either make good the damage, or surrender the animal. For if I
had been injured by an animal living in its natural freedom, I could
certainly repair my loss in any way, seizing or killing the beast, -- a
right which evidently could not have been taken away by the fact of
ownership on the part of another. And since the owner receives gain from the
animal, while I have suffered a loss from the same, and since repairing a
loss finds far greater favor than making gain, it is clear that I may
rightly demand of the master of the animal, that he make good the loss, or
else, if the animal is not worth so much in his estimation, deliver it up to
me.
13. So then, if a man has without malice aforethought caused damage to
another, he is bound to make a voluntary offer of restitution, and testify
that he was far from any malice, that the injured party may not hold him an
enemy, and on his side plan acts of hostility. But one who has injured
another maliciously, is not only bound to make a free offer of restitution,
but also to show his repentance, and ask pardon. On the other side, the
injured, once he has obtained restitution, is bound to grant pardon to the
penitent who begs for it, and to be reconciled to him. For he who is
unwilling to rest satisfied with restitution and repentance, but sets out to
avenge himself anyhow with his own hand, is only humoring the bitterness of
his heart, and so for an empty reason breaking the peace among men. For this
reason even the natural law condemns vengeance, which has no other end than
to harm those who have injured us, and satisfy our feelings with their
suffering. But it is proper that men should be the more inclined to forgive
mutual offenses, the more frequently they themselves violate the laws of the
supreme Deity, and hence have daily need of forgiveness themselves.
______
CHAPTER VII
On Recognition of the Natural Equality of Men
1. Man is an animal not only most devoted to self-preservation, but one in
which has been implanted a sensitive self-esteem. And if this be in any way
slighted, he is in general no less perturbed, than if an injury has been
inflicted upon his person or property. Even the word man is thought to
contain a certain dignity, so that the last and most effective argument in
repelling the insolent contempt of others is this: "I am certainly not a
dog, but a man as well as you." Inasmuch then as human nature is the same
for all alike, and no one is perfectly willing or able to be associated with
another, who does not esteem him as at least equally a man and a sharer in
the common nature; therefore, among the mutual duties the second place is
given to this: that each esteem and treat the other as naturally his equal,
that is, as a man just as much as himself.
2. But this equality of men consists not only in the fact that adult men are
about equal in strength, in so far as the weaker can inflict death upon the
stronger by ambush, or with the help of dexterity, or an effective weapon;
but also in this, that, although one has been fitted out by nature with
various gifts of mind and body beyond the other, he must none the less
practice the precepts of natural law toward other men, and himself expects
the same treatment from others; and in the fact that no more freedom is
given the man to injure others on that account. So, conversely too,
niggardliness of nature or straitened circumstances do not of themselves
condemn a man to a lot inferior to that of others as regards the enjoyment
of the common right. But what one can demand or expect from another, that
others too must demand of him, other things being equal. And it is eminently
proper that one should himself practice the law which he has set up for
others. For the obligation to cultivate the social life with others binds
all men equally, and one is no more permitted than another to violate the
natural laws in their dealings with each other. And yet popular arguments
are not lacking to illustrate that equality; for example, that we all
descend from the same stock, and are born, fed, and die in the same manner;
and that God has given no man assurance of a stable and unshaken fortune. So
also the injunctions of the Christian religion do not commend nobility,
power, or wealth, as a means of gaining the favor of God, but sincere piety,
which can be found in the humble, just as well as in the great.
3. Moreover, it follows from this equality that he who wishes to use the
services of others for his own advantage, is bound in turn to spend himself,
that their wants may be satisfied. For the man who demands that others serve
him, but on the other hand desires to be always immune himself, is certainly
considering others not equal to himself. Hence, as those who readily allow
the same permission to all as to themselves, are the best adapted to
society, so those are plainly unsociable who, thinking themselves superior
to others, wish to have all things permitted to themselves alone, and
arrogate honor to themselves above the rest, and the lion's share of the
things common to all, to which they have no better right than the others.
Accordingly this too is one of the common duties of the natural law: that no
one, who has not acquired a peculiar right, arrogate more to himself than
the rest have, but permit others to enjoy the same right as himself.
4. The same equality shows how a man should conduct himself, when he must
assign their various rights to others, viz., that he must treat them as
equals, and not indulge the one as against the other, except on the merits
of the case. For if this is not done, the man not favored is affronted as
well as injured, and the esteem Nature gave him is taken away. It follows
then that a common thing must be duly divided in equal portions among
equals. When it does not admit of division, those who have an equal right
ought to use it in common, and this as much as each shall please, if the
amount permits. But if this is impracticable, they should then use the thing
after a manner prescribed, and in proportion to the number of the users. For
no other method of respecting equality can be devised. But if the thing can
neither be divided nor held in common, let the enjoyment of it be alternate;
or if this also fails, or no equivalent can be furnished the rest, the thing
must be awarded to one by lot. For in cases of this kind no better remedy
than the lot can be found, since this takes away the sense of a slight, and
if it fails to favor a man, it does not detract from his esteem.
5. Men sin against this duty by arrogance, thanks to which a man, for no
reason, or an insufficient one, prefers himself to others, and despises
them, as though they were not his equals. I say "for no reason"; for when a
man has duly acquired a right, which gives him preference over others, he is
justified in exercising and maintaining it, short of vain conceit, however,
or contempt for others. So, conversely, anyone does well in yielding to
another the precedence and honor which is his due. For the rest, true
generosity always has as its companion a certain humility, which consists in
reflecting upon the weakness of our nature, and the errors we may have
formerly committed, or may hereafter commit, -- errors not less than those
which others may commit. The result of this humility is that we do not
prefer ourselves to anyone, reflecting that the rest can use their free will
quite as well as ourselves, as the same power is theirs. And its legitimate
use is the one thing which a man can count as his own, and by which he is
enabled to esteem or despise himself. But to be puffed up for no reason, is
a fault truly ridiculous; because it is foolish in itself to think much of
one's self for nothing; and also because one is judging all others fools, as
if they would esteem you without reason.
6. A greater sin still is committed, if one show contempt for others by
outward signs, acts, words, countenance, a laugh, or any kind of slur. And
this sin is to be rated the worse, in proportion as it excites men the more
fiercely to anger and lust for revenge. So much so, that many are found who
prefer to expose their lives to immediate danger, -- much more to break the
peace with others, -- than to let an insult go unavenged. For this damages
reputation and esteem, upon whose maintenance and strength depends all their
inward pleasure.
______
CHAPTER VIII
On the Common Duties of Humanity
1. Among the duties of men in general to others in general, and those which
are to be practiced for the sake of the common sociability, the third place
is taken by this: that every man promote the advantage of another, so far as
he conveniently can. For since Nature has established a kind of kinship
among men, it would not be enough to have refrained from injuring or
despising others; but we must also bestow such attentions upon others, -- or
mutually exchange them, -- that thus mutual benevolence may be fostered
among men. Now we benefit others either definitely or indefinitely, and that
with a loss, or else without loss, to ourselves.
2. A man tends to promote the advantage of others indefinitely, if he
thoroughly cultivates his own soul and body, so that useful actions may
emanate from him to others; or if by ingenuity he finds the means of making
human life better equipped. Hence it is against this duty that they are to
be thought sinners, who learn no honorable art, pass their life in silence,
and have a soul "only as so much salt, to keep the body from decay," [7] --
"mere numbers," and " born to consume the fruits of earth."[8] Also those
who, content with the riches left by their ancestors, think they may with
impunity offer sacrifice to indolence, since the industry of others has
already gained for them means to live upon; "Or brooded selfishly o'er
hoards of gold, Nor spared a portion for their kindred."[9] So also those
who, like swine, cheer no one except by their death; and other such
cumberers of the ground.
3. But to those who endeavor to be benefactors of the human race, the rest
owe this in return, that they be not envious, throw no obstacle in the way
of their noble efforts. Also that, if there be no other way of compensating
them, they at least promote their fame and memory, this being the chief
reward of labors.
4. But especially is it regarded as contemptible malignity and inhumanity,
not to bestow willingly upon others those blessings which can be accorded
without loss, trouble, or labor to ourselves. These are usually called mere
favors, that is, benefiting the recipient, and not burdening the giver.
Examples are: not to exclude from running water, to allow taking fire from
our fire, to give honest advice to one in doubt, to point out the way kindly
to him who has lost it. So if a man does not wish to possess a thing any
longer, on account of an embarrassment of riches, or because maintenance is
a burden to him, why should he not prefer to leave the thing intact, so that
he can give the use of it to others, public enemies excepted, rather than
spoil it. Thus it is not right to waste food, after we have sated ourselves,
nor to stop up a spring, or hide it, after we have had enough to drink; nor
to destroy aids to navigation or road-marks after we have used them. Here
belong moderate alms bestowed by the rich upon the needy; also that kindness
which is shown for good reason to travelers, especially when some misfortune
has overtaken them; and other things of the sort.
5. A higher form of humanity is bestowing freely upon another, and out of
rare benevolence, something costing money or painful effort, designed to
meet his needs, or win for him some signal advantage. These are called
benefits par excellence, and they offer the best opportunity to gain praise,
if only nobility of spirit and prudence duly control them. The dispensing of
these and their proper limits are governed generally by the situation of the
giver and that of the recipient. And here we must take special care that our
generosity do not injure both those to whom we think we are doing a kind
turn, and the others too; also that the generosity be not greater than our
means; and again that we give to each in proportion to his worth, and above
all to those who have deserved well; also in proportion to their need of our
help, and with regard also to the different degrees of closeness in the
relations of men. We must also consider what each needs most, and what he
can accomplish or not, with or without us. The manner of giving too adds
much to the acceptability of favors, if we give with cheerful face, readily,
and with assurance of our good-will.
6. In return there must be gratitude in the mind of the recipient. Thus he
shows that the gift was acceptable to him, and for that reason he favors the
giver, and seeks an occasion to make an equal or larger return, in so far as
be can. For it is not necessary to return precisely the amount of the gift;
but often zeal and endeavor satisfy the obligation. However there must be no
reasonable exception which we can take, as against the man who claims to
have done us a favor. For example, I owe nothing to the man who has pulled
me out of the water, if he first threw me in.
7. But the better suited favors are to attach the affections of men to the
giver, the more earnestly must the recipient devote himself to showing his
gratitude. At least we must not allow a man who, trusting us, has
forestalled us in a kind deed, to be on that account in a worse situation.
Nor should we receive a favor, except with the purpose of preventing the
giver from repenting of his gift with good reason. For, if for a certain
reason we are particularly unwilling to be under obligations to a man, it
will be permissible to decline the favor tactfully. And certainly if there
were no necessity of showing gratitude, it would be unreasonable for a man
to throw away his property recklessly, and hasten to confer a favor which he
foresees will be lost. In this way all beneficence and confidence between
men would be destroyed, and likewise all benevolence; and there would be no
gratuitous assistance, nor any first step in winning men.
8. Again, although there is in itself no injury in ingratitude, still it is
considered more shameful, odious, and detestable, to be called ungrateful
than unjust. For it is thought the mark of a very low and degenerate mind,
to show one's self unworthy of the favorable judgment which the other has
passed upon one's character, and to be incapable of rousing one's self to
feelings of humanity in return for kindnesses which charm even the brutes.
But in a civil court no action is usually granted for simple ingratitude, or
if a man forgets a mere favor, and when opportunity is given, still neglects
to requite it. For if an action be allowed, as for a certain sum of money,
the best part of the favor perishes, as it will now begin to be a loan. And
whereas it is now a most honorable thing to be grateful, it will cease to be
so conspicuously honorable, if it be necessary. Finally, all the courts in
the world would hardly suffice for this one law, on account of the
difficulty of appraising the circumstances which increase or diminish a
favor. And the very reason why I gave the favor, i.e., why I did not
stipulate that it should be repaid, was that the other man might have an
opportunity to show that he has been grateful, from the love of what is
honorable, not from the fear of human punishment or compulsion; and, on my
part, that I may be understood to have bestowed it, not in hope of gain, but
in order to practice humanity, being unwilling to demand security for the
return of the gift. But he who not only does not repay a favor, but also
actually requites his benefactor with evil, deserves all the more severe
penalty for so doing, in proportion as he shows a more infamous malignity
within.
______
CHAPTER IX
On the Duties of Contracting Parties in General
1. From the absolute duties we pass to the conditional, by way of agreements
as a transition; since all the duties not already enumerated seem to
presuppose an express or tacit agreement. We have then to treat here of the
nature of agreements, and what is to be observed by those who enter into
them.
2. Now it is sufficiently clear that it was necessary for men to enter into
agreements. For, although the duties of humanity are widely diffused
throughout human life, it is still impossible to deduce from that one source
all that men were entitled to receive to advantage from one another. For not
all have such natural goodness, that they are willing, out of mere humanity,
to do all the things by means of which they may benefit others, without an
assured hope of receiving the like in return. Often, too, favors which can
come to us from others, are of a sort to make us unable to demand without a
blush that they be done for us for nothing. And frequently it is unbecoming
to our station or person to owe such a favor to another. And in fact, as the
other is unable to give much, so we are often unwilling to accept, unless he
receives an equivalent from us. Finally, not uncommonly others are in the
dark as to how they may serve our interests. Therefore, in order that the
mutual duties of men (the fruit, that is, of sociability) may be discharged
more frequently and according to certain rules, it was necessary for men to
agree among themselves, as to the mutual performance of all that they could
not certainly promise themselves from others, on the basis of the law of
humanity alone. And indeed it was necessary to determine in advance, what
one was bound to perform for another, and what the latter should in turn
expect and exact as his right from the former. And this is done by promises
and agreements.
3. In regard to these, the general duty which we owe under natural law is,
that a man keep his plighted word, that is, fulfill his promises and
agreements. For, but for this, we should lose the greatest part of the
advantage which is apt to arise for the race from the interchange of
services and property. And were there not the necessity of keeping promises,
one could not build one's calculations firmly upon the support of others.
And also from a breach of faith there are apt to arise entirely just causes
for quarrels and war. For when I have performed something in accordance with
an agreement, if the other defaults his promise, I have lost my property, or
my services, for nothing. But if, on the other hand, I have not yet
performed anything, it is still an annoyance to have my calculations and
plans disturbed, since I could have made other provision for my affairs, if
he had not presented himself. And it is a shame to be mocked because I
believed the other a prudent and honest man.
4. We must observe also, that what we owe under the mere duty of humanity
differs from what is owed by virtue of a compact or perfect promise
especially in this respect, viz., that things of the former class are
properly asked, and honorably performed; but when the other has failed of
his own motion to perform, I can complain merely of his inhumanity,
barbarity, or harshness; but I cannot compel him to perform, by my own force
or that of my superior. This is my privilege, however, when he does not of
himself perform what is due in accordance with a perfect promise or a
compact. Hence we are said in the former case to have an imperfect right, in
the latter, a perfect right, as also to be obligated imperfectly in the one
case, and perfectly in the other.
5. We give our word either by a solitary, or one-sided, act, or by a
reciprocal, or two-sided, act. For sometimes one man merely binds himself to
some performance, sometimes two or more bind themselves mutually to some
performance. The former act is called a gratuitous promise, the latter a
compact.
6. Promises can be divided into the imperfect and the perfect. We have the
former when we who promise[10] are indeed willing to be bound, in such a
way, however, that we do not give the other the right to exact, or are
unwilling to be compelled by force to fulfill our promise. For example, if I
thus frame my promise: "I have determined in all seriousness to perform this
or that for you; and I ask you to believe me." For thus I seem obligated
rather under the law of veracity, than that of justice; and I prefer to be
thought impelled to discharge the duty by my own constancy and solidity of
character, rather than in view of another's right. Here belong the promises
of men of power or influence, when in seriousness, and not in compliment
they pledge to a man their recommendation, intercession, advancement, or
support. They do not, however, desire by any means that these things be
exacted of them as by some right, but wish to have them set down wholly to
their humanity and their veracity, so that gratitude for performing their
duty may be the greater, the further it was removed from compulsion.
7. A perfect promise, on the other hand, is when I am not only willing to be
bound in any case, but also confer upon the other at the same time a right,
so that he can demand of me in full, as owed to him, the thing I promised.
8. Moreover, that promises and compacts may bind us to give or do something
not formerly required of us, or to omit what we previously had a right to
do, our voluntary consent is most essential. For, since the fulfillment of
any promise and agreement is associated with some burden, there is no better
reason to prevent our justly complaining about it, than the fact that we
voluntarily consented to what it was evidently in our own power to avoid.
9. Consent is, to be sure, regularly and usually expressed by signs, for
example, words, letters, and nods; but it sometimes happens that without
these signs, from the very nature of the business and other circumstances,
consent is clearly inferred. Thus at times silence, considered together with
certain circumstances, is effective, instead of a sign of consent. Hence
there are also tacit agreements, namely when our consent is expressed not by
such signs as are regularly accepted in men's intercourse; but when it is
clearly inferred from the nature of the business and other circumstances. So
too, a principal agreement has often attached to it a tacit agreement, which
flows from the very nature of the business. And so also it is very common in
compacts for certain tacit exceptions and necessary conditions to be
understood.
10. But to be able to give clear consent, the use of reason is required to
this extent, that one understand the business in hand, whether it is proper
for one, and can be performed by one; and then, when this has been weighed,
that one be able to indicate his consent by sufficient signs. Hence it
follows that the promises and agreements of infants, as also of idiots and
the insane except where their madness is marked off by lucid intervals), are
null. And this must also be declared of the promises of the intoxicated, if
intoxication has already gone so far that reason is plainly overpowered and
stupefied. For it cannot be called a true and deliberate consent, if a man
incline ever so much to an act by a momentary and unconsidered impulse, or
give signs under other circumstances indicative of consent, at a time when
the mind has been, as it were, displaced by some drug. Moreover it would be
shameless to exact the fulfillment of such a promise, especially if
involving a great burden. Again, if a man lay in wait for such intoxication,
and observing the other's complaisance, cunningly extracted a promise, he
will not be immune even from the charge of trickery and fraud. But whoever,
after shaking off his intoxication, has confirmed his acts during that
state, will certainly be obligated, not on the score of what he did when
drunk, but of what he did when sober.
11. As for children, how long weakness of reason, hindering them from
contracting an obligation, lasts in their case, cannot, in general, be very
accurately defined, since in some judgment matures more quickly, in others
more slowly. But that must be judged by the daily actions of each child. And
yet in most states civil laws have established here a certain limit of time.
So also in some places it is a salutary custom, that in contracting
obligations infants must employ the authorization of more prudent persons,
until the rash impulsiveness of youth is thought to have cooled off. For
that age, even when it understands the business in hand, is generally
carried away by a strong and short-sighted impulse, and is easy in making
promises, hopeful, seeking a reputation for liberality, prone to interested
friendships, and unacquainted with distrust. Hence he is scarcely to be
acquitted of trickery, who takes advantage of that easy-going age, and
wishes to enrich himself by the losses of others, which they, on account of
feeble judgment, know not how to foresee or to estimate.
12. Consent is further hindered by an error. With regard to this, these
rules must be observed: (1) When in a promise I have supposed anything as a
condition, without reference to which I should not have promised, naturally
the promise will have no force. For the promisor agreed not absolutely, but
on a condition; and this not being realized, the promise too is null. (2) If
I was led to agree or contract in consequence of an error, and I shall
discover it while the matter is still intact and nothing has as yet been
performed, it will certainly be equitable to allow me the opportunity to
repent; especially if, in entering the agreement, I have openly declared the
reason impelling me thereto, and if the other suffers no loss from my change
of mind, or I am ready to make it good. But when the matter is no longer
untouched, and the error becomes known only after the agreement has been
fulfilled in whole or in part, the man who was mistaken cannot withdraw from
his agreement, except in so far as the other is willing out of humanity to
indulge him. (3) When an error has arisen in regard to the very thing which
was the object of the agreement, the latter is vitiated, not so much on
account of the error, as because the terms of the agreement were not
satisfied. For in agreements the object in regard to which they agree, and
its qualities, ought to be known, without which knowledge clear consent is
unintelligible. Hence, on the discovery of a defect, the man who would have
been injured can either withdraw from the contract, or compel the other to
make good the defect, or even to pay the difference, when trickery or a
fault on his part was involved.
13. But if a man was induced by the other's trickery and malicious fraud to
promise or contract, we must hold these principles: (1) If a third person
has employed guile, without collusion of the contracting party, the matter
will stand; but from him who employed guile we shall be able to demand what
we should have gained, if we had not been deceived. (2) If a man by guile
has given me occasion to promise him something, or make some agreement with
him I am not bound to him at all in consequence of that act (3) If a man
shall enter into an agreement voluntarily and with evident intention, but
still guile shall appear in the affair itself, for instance, in regard to
the object, or its qualities and value, the agreement will be defective, so
much so, that it is within the discretion of the deceived party to dissolve
it entirely, or to demand compensation for the damage. (4) Matters not
essential to the affair, and not expressly mentioned, do not vitiate an
agreement otherwise made in due form, even though one of the parties may
have made a tacit assumption while contracting, or his belief may have been
cunningly confirmed, until the contract should be concluded.
14. Fear, as involved in promises and agreements, is understood in two
senses: either as a plausible suspicion, that we may be deceived by the
other, either because such a defect is inherent in his mind, or else because
he has shown quite clearly his malicious intention ; or, in the second
place, as great terror, arising from the threat of serious harm, if we are
unwilling to promise, or to enter the agreement. With regard to the former
kind of fear we must understand: (1) That whoever trusts the promises and
agreements of a man whose honor is in general worthless, acts imprudently to
be sure; but that an agreement is not made void by that sole cause. (2) When
the agreement has been once entered into, and no new indications come to
light of a deception aimed at us, it will not be open to us to withdraw from
the agreement, on the pretext of defects which were recognized before it was
made. For a reason which did not prevent a man from contracting, ought not
to prevent him from fulfilling his contract. (3) When after the agreement
has been entered very evident indications come to light, that the other man
plans to cheat me, after I have first done my part, then I cannot be
compelled to do so, until security has been given me against that deception.
15. With regard to the other species of fear, these rules are to be
observed: (1) Contracts entered into on account of fear inspired by a third
party are valid. For in this certainly no defect is involved, to prevent the
other man from getting his rights under the contract as against me, and he
certainly deserves compensation for having removed the fear inspired by the
third party. (2) Contracts entered into from fear of, or respect for,
legitimate authority, or through deference to those to whom we are under
great obligations, are valid. (3) Contracts into which a man is unjustly
forced by the very person to whom he gives the promise, or with whom he
contracts, are invalid. For the injury which he inflicts upon me by
inspiring an unjust fear, renders him incapable of claiming his rights
against me under the agreement. And since one is otherwise bound to make
good a loss occasioned by himself, therefore, if what should have been at
once restored, is not paid, then the obligation is annulled by the
counter-claim.
16. Furthermore, consent should be mutual, not only in contracts, but also
in promises, so that both promisor, and promisee, must consent. For when the
consent of the latter is lacking, or when he has refused to accept the
offered promise, the thing promised remains in the hands of the promisor.
For he who offers something of his own to another, neither wishes to obtrude
it upon him against his will, nor to consider it ownerless. Hence, if the
other does not accept it, the right of the promisor over the thing offered
is undiminished. But if there was a previous request, it will be held to
continue, unless expressly recalled; and in that case acceptance is
understood to have taken place in advance, provided the offer corresponds to
the request. For if there is a discrepancy here, an express acceptance is
required, since often my interests are not served, unless I receive the
amount for which I asked.
17. As for the subject-matter of promises and agreements, it is required
that what we promise or agree to, be not beyond our powers, and that we be
not forbidden by some law to perform it. For otherwise we are making either
a foolish or a criminal promise. It follows then that no one can bind
himself to what is for him impossible. If, however, a thing considered
possible at the time of entering the agreement, has later by some chance
become impossible, for no fault of the contractor, if nothing has yet been
done, the contract will be void. If anything has been already done by the
other, it must be restored, or an equivalent repaid. If even this is
impossible, the greatest pains must be taken, that the other suffer no loss.
For in contracts we have regard primarily to that upon which there was
express agreement. When we cannot obtain this, it suffices if an equivalent
is furnished. At least we must by all means take care that we experience no
loss. But a man who, by guile or serious fault, has diminished his own
powers of performance, is not only bound to make the utmost efforts, but can
be punished into the bargain, to make good, as it were, any deficiency.
18. It is clear also that we cannot be bound to perform anything unlawful.
For no one can effectively put himself under an obligation beyond his own
power. But he who by a law forbids an action, of course takes away the power
of undertaking it, and of accepting an obligation to perform it. For it
would be a contradiction, to be bound absolutely under an obligation
confirmed by the laws to do something forbidden by the same laws. Hence he
who promises unlawful acts is guilty; twice guilty he who performs such
promises. From which we further conclude that promises which will be
injurious to him for whom they are made, ought not to be kept; since it is
forbidden by the natural law to cause harm to another, even if he foolishly
desires it. If then an agreement concerning a shameful thing has been
entered into, neither party will be bound to perform it. In fact, even when
the shameful deed has been committed by one of them, the other will not be
bound to pay the wages agreed upon. But whatever has already been given with
such a motive, cannot be recovered, unless trickery or extraordinary damage
may be involved.
19. Finally, it is also clear that promises or agreements affecting things
belonging to others are void, in so far as these are subject not to our
direction and will, but to those of another. But if I promise to exert
myself to have the other perform something (presupposing that I cannot
command him by authority), then, by every means morally possible (i.e., in
so far as the other can ask it of me honorably, and regard for the civil
life permits), I am bound to use my efforts to persuade him to do his part.
Moreover, as regards things or actions of mine, to which another has by this
time acquired a right, I cannot make a valid promise to a third person,
except with a view to the possibility that the other's right may expire. For
one who by previous promises or agreements has already transferred his right
to another, certainly has no longer any right left, such as he can confer
upon a third person. And it would be no trouble to void all promises and
agreements, if it were permitted to enter upon another, which made contrary
dispositions and could not be fulfilled at the same time with the previous
agreement. Upon this Tests the old saying, "First in time, first in right."
20. With regard to promises it is further to be particularly observed, that
they are usually made either simply and absolutely, or under a condition,
that is, the validity of the promise is attached to some occurrence
depending upon chance or the will of man. Now conditions arc either possible
or impossible. The former are subdivided into the casual or fortuitous, the
existence or non-existence of which is not in our power; discretionary or
arbitrary, the existence or non-existence of which is in the power of him to
whom the promise is given; and mixed, the fulfillment of which depends
partly upon the will of him to whom the promise is given, and partly upon
chance. The impossible conditions are such either physically or morally,
that is, some things cannot in the nature of things be done, and some ought
not to be, as contrary to laws and morality. And impossible conditions, if
we follow the natural and simple interpretation, negative the language of a
promise. And yet, legally speaking, it is possible, in case they have been
added in some serious affair, to regard them as non-existent, that men may
not be mocked by agreements which can have no outcome.
21. Finally, we promise and contract, not only of ourselves, but also
through the intervention of other men, whom we have ourselves appointed as
go-betweens and interpreters of our will. And when they in good faith have
done what was contained in our instructions, we are under a valid obligation
to such persons as have dealt with them as our representatives.
22. Such are the absolute duties of man, as also those which serve as a
transition to the other kind. The rest presuppose either some human
institution, based upon a universal convention, and introduced among men, or
else some particular form of government. Of such institutions we observe in
particular three: language, ownership and value, and human government. We
must next explain each of these, together with the resulting duties.
______
CHAPTER X
On the Duty of the Users of Language
1. There is no one who does not know how useful and entirely necessary an
instrument of human society language is. For many have inferred from that
faculty alone that man was destined by Nature to lead a social life. Hence,
as regards its legitimate and profitable use for human society, natural law
prescribes to men this duty, that no one deceive another by language, or by
other signs designed to express the thoughts of the mind.
2. But, the more thoroughly to understand the nature of language, we must
know that there is a twofold obligation as regards language expressed viva
voce or in writing. One is that by which users of the same language are
bound to apply a certain word to a certain thing, according to the usage of
the particular tongue. For neither sounds nor certain shapes of letters
naturally mark a certain thing, for otherwise all tongues or kinds of
writing ought to be identical. Hence, that the use of language be not in
vain, if each were to call a thing by any name he pleased, there must be
among the users of the same language a tacit convention, to designate a
certain thing by a certain word and no other. For unless there has been
agreement upon a uniform application of words, it is impossible to gather
from another's speech the thoughts of his mind. Therefore by virtue of that
compact every man is bound in common speech to employ words according as the
established usage of that language prescribes. Hence it follows also that,
although thoughts may possibly be out of harmony with speech, in human life
each is thought to have meant just what his words indicate, even though the
inward purpose of the mind may be at variance with them. For as to that,
nothing can be known except by signs, and thus all use of language would be
rendered of no effect, if in the common life the inward thought, which each
can feign according to his own caprice, could nullify the meaning of the
signs.
3. The other obligation which has to do with language consists in this, that
a man ought so to reveal his thoughts to another by language, that they may
be clearly known to him. For, since man has the power not only to speak, but
also to be silent, and is not bound to disclose what he has in mind openly
to all and sundry, therefore there must exist a particular obligation, to
impose upon one the necessity both of speaking, and of so speaking that
another can understand our thoughts. And that obligation arises either from
a particular agreement, or from a common precept of the natural law, or from
the nature of the business in hand, in the transaction of which speech is
employed. For often there is an express agreement with a man, that he
disclose to me his mind concerning some matter of business, for example, if
I engage a man to teach me some subject. Often too some precept of the
natural law bids me share my knowledge with another, that so I may help him,
or avert some harm for him, or avoid furnishing cause or occasion for his
suffering harm. Finally, sometimes the affair in hand, begun with another,
cannot be completed, unless I disclose my judgment in the matter, as is the
case in making contracts.
4. But as it does not always happen that under some one of these beads I am
required to make known my mind to another, it is evident that I am bound to
indicate to him in speech only such matters as he has a right, either
perfect or imperfect, to learn from me; and hence also that, no matter how
insistent the questions are, I can rightly conceal things which the other
has no right to know from me, and which I am bound by no obligation to
reveal.
5. In fact since language was invented not only for others, but also for our
own sake, for that reason, where some advantage of mine is involved, and no
other man's right is injured, I may so shape my speech as to express
something different from what is in my mind.
6. Finally, as those to whom we speak are often so situated that, if they
should learn the fact in plain and open language, it would be to their own
injury, and we should be unable to accomplish the good end which we have in
view, it will therefore be permissible in these cases to use fictitious and
figurative language, not directly conveying our meaning and intention to the
hearers. For he who desires to benefit a man, and ought to do so, is
certainly not bound to do it in a way which would defeat his own end.
7. From these principles we learn what constitutes the truth, devotion to
which so highly commends good men; namely, that words should aptly reproduce
our thoughts to another, who has the right to know them, and which we are
under an obligation, perfect or imperfect, to disclose. And all this to the
intent that by knowledge of our mind he may gain some advantage which is due
him, or may not suffer an undeserved loss, if incorrectly informed. From
this it is incidentally evident, that it is not always a lie even when
purposely we do not say what exactly squares either with the fact, or with
our thoughts; and thus that logical truth, which consists in the conformity
of words to things, does not altogether coincide with moral truth.
8. It is a lie, however, when speech deliberately expresses an opinion
different from our real mind, in spite of the fact that the person addressed
had a right to know it, and that an obligation rested upon us to let him at
least know our opinion.
9. From what has been said it is then established that the stigma of a lie
is not incurred by those who employ fictions and fables for the better
information of children or the childlike, since they lack capacity for the
naked truth. The same is true of others who make use of fiction for a good
end which they could not attain by plain language; for example, if they must
protect an innocent man, appease the angry, comfort the sorrowing, encourage
the timid, persuade the squeamish to take medicines, break down someone's
obstinacy, defeat another's evil intention; or in case secrets of state and
plans which ought to be kept from the knowledge of others, must be veiled by
fictitious reports, and the ill-timed curiosity of others disposed of; or if
by tales, in lieu of a stratagem, we baffle an enemy whom we might have
injured openly.
10. On the other hand, if a man was indeed bound dearly to indicate his mind
to another, he does not escape blame, if he tells merely a part of the
truth, or deceives another by ambiguous language, or retains a tacit mental
reservation, out of keeping with general practice.
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CHAPTER XI
On the Duty of Those Who Take Oaths
1. By an oath it is held that a striking confirmation is added to our
speech, and all the acts in which speech has a part. For it is a religious
affirmation, in which we renounce our claim upon the Divine mercy, or call
down the Divine punishment upon ourselves, if we do not tell the truth. And
while the omniscient and omnipotent witness, who is at the same time the
avenger, is being invoked, the presumption of truth is created by the fact
that hardly anyone is thought so impious that he will dare thus insolently
to call down upon himself the dire wrath of the Deity. Hence it is
understood to be the duty of oath-takers to approach the oath with
reverence, and then religiously to observe their oath.
2. Moreover the end and use of an oath consists chiefly in this, that men
may be bound all the more firmly to declare the truth, or to keep promise or
contract, by fear of the omniscient and omnipotent Deity, whose vengeance,
if they knowingly deceive, they call down upon themselves by the oath,
whereas the fear of men seemed ineffectual. For they hoped to be able to
despise or elude men's power, or escape their knowledge.
3. But because, aside from God, there is nothing omniscient or omnipotent,
it is absurd to take an oath by something which is not believed to be
divine, with the idea that that thing is being invoked as witness and
punisher of perjury. And yet it is common in oaths to name a certain thing
and swear by it, with the understanding that, in case of perjury, God may
wreak His vengeance on that particular thing, as very dear to the deponent,
and highly esteemed by him.
4. In oaths the formula, in which God is described, while invoked as witness
and avenger, must be adapted to that belief or religion which the taker of
the oath cherishes in regard to God. For it is vain to require of a man an
oath by a god whom he does not believe in, and so does not fear. But no one
thinks he is swearing by God, if under another formula or under another name
than that contained in the teachings of his own religion, -- the true
religion in the opinion of the deponent. Hence also he who swears by false
gods, whom he however holds to be true, is certainly bound, and in case he
deceives, really commits perjury. For under some special concept he had
before his eyes a general notion of deity, and so, in knowingly forswearing
himself, he has violated, so far as in him lay, the reverence due the
majesty of God.
5. To the binding force of an oath it is necessary that it be undertaken
with a deliberate intention. Hence one who has read an oath aloud, or
dictated its formal wording in the first person to another, is not bound at
all by an oath. But one who gave the appearance of intending seriously to
swear, certainly will be bound, no matter what he had in mind while
swearing. For otherwise the whole practice of oaths, or rather every means
of binding one's self by recourse to outward signs, would be taken away from
human life, if by mental reservation one could prevent a formal act from
having the effect which it was designed to produce.
6. Oaths do not in themselves produce a new and particular obligation, but
are added as a sort of accessory bond to an obligation in itself valid. For
always in swearing we suppose something, failing to perform which, we call
down upon us the Divine punishment. And this would be foolish, if it were
not unlawful to fail to perform the thing in question, in other words, if we
were not already bound. Hence it follows that formal arts, to which attaches
a defect nullifying the obligation, do not become obligatory by the addition
of an oath. In the same way a previous valid agreement is not destroyed by a
subsequent oath, nor is a right which another had thereby acquired now taken
away from him. Therefore it is vain to swear that one will not pay one's
debt to another. And an oath is not binding when it is established that the
swearer supposed some fact which in reality was not such, and would not have
sworn, if he had not so believed; especially if he was led into error by a
trick on the part of him to whom he swore. Also the man who by an unjust
fear makes me take an oath acquires in consequence of that oath no right
legally to demand anything of me. Of no effect also is an oath concerning
the performance of an unlawful act; or even that which concerns the omission
of some good deed enjoined by laws divine or human. Finally, an oath does
not change the nature and substance of a promise or contract to which it is
added. Hence it is in vain that one swears to impossible things. And a
conditional promise is not changed into an absolute or simple one by an
oath. And acceptance is required just as truly in the case of a promise
under oath.
7. Moreover, by reason of the added appeal to God, whom none may deceive by
cunning nor mock with impunity, oaths have this effect, that not only is a
severer penalty thought to await him who has proved false to a sworn than an
unsworn promise; but also that trickery and equivocation must be excluded
from dealings to which oaths are added.
8. Not always, however, are oaths to be interpreted in a broad sense, but
also sometimes strictly, if indeed the subject-matter seems to require it;
for example, if the oath took the direction of hatred toward another, and
was added to threats, rather than to a promise. In fact even an oath does
not exclude tacit conditions and limitations, which properly flow from the
very nature of the thing; for example, if under oath I have given a man the
privilege of asking anything that he pleases, in case he asks unjust or
absurd things, I shall not be bound at all. For whoever at another's request
makes an indefinite promise, not yet knowing what he is going to ask,
presupposes that the other will ask things honorable, morally possible, and
not absurd or dangerous for himself or others.
9. We must also note that in oaths the sense of the whole text prevails as
avowedly understood by the man who tenders the oath, that is, the man to
whom we swear. For it is in his interest especially, not that of the
swearer, that an oath is given. Hence it is his privilege also to frame the
words of the oath, and with all possible clearness. And he must show how he
understands them, while the swearer should declare that he clearly
understands the meaning; and he must clearly pronounce the words, so that he
can in no way equivocate or evade.
10. The division of oaths is conveniently based upon the use to which they
are put in the common life. For some are added to promises and contracts,
that they may be observed the more scrupulously. And some are employed to
confirm a man's assertion concerning a fart that is not dear, and where the
truth cannot be discovered more conveniently by other means. Such an oath is
demanded of witnesses, that is, persons thought to have knowledge of
another's deed. Sometimes also those who are at odds settle their suit by
taking an oath, as proposed by the judge or the other party.
______
CHAPTER XII
On Duty as regards the Acquisition of Ownership
1. Such is the constitution of the human body, that it needs for its
nourishment things which it takes from without, as also for its protection
against whatever tends to destroy its structure, and that this life can be
made more comfortable and easy by a number of different things. Hence it is
a safe inference that it is with the entire consent of the great Ruler of
the universe that man makes use of other creatures for his own needs, and
even destroys many of them. And this obtains not only as regards vegetables,
and things that are destroyed without sensation, but also concerning
innocent animals, which, in spite of the pain of their death, are killed and
consumed by man for food without sin.
2. But in the beginning all these things are understood to have been set out
by God in the midst, as it were, of awn. so that they belonged no more to
one than to another; but so, however, that men should make such arrangements
in regard to them as the constitution of the human race, regard for its
peace and quiet, and the maintenance of good order seemed to demand. And
thus, while the race of mortals was limited to a few, it was decided that
whatever a man had laid hold of, with the intention of applying to his own
needs, should be his. and ought not to be taken away from him by another;
but that the substances from which these things were derived, should remain
in common, not pertaining to any one in particular. But later, when men had
multiplied, and cultivation had come to be applied to the things from which
food and clothing are produced for man, in order to avoid quarrels, and to
introduce good order, even the substances of things were also divided among
men, and to each his own portion was assigned. And this convention was
added, that whatever in the first division of things was left common, could
thereafter become the property of the first claimant. So then by the will of
God, the consent of men in advance, and an agreement at least tacit,
property in things, or ownership, was introduced.
3. Ownership then is the right by which the substance, so to speak, of a
thing belongs to ft man, so that it does not belong as a whole in the same
way to another. Hence it follows that we can dispose as we please of things
belonging properly to us, and can have acquired a special right from us by
agreement. Yet in states it usually happens that ownership is not always
unrestricted in the case of all men, but circumscribed with certain limits
by civil authority, or by an arrangement or convention which men have made
with each other. When one thing, however, belongs to several in the same way
and without division, it is said to be common to those persons.
4. But as things have not come to be owned all together or at once, but
successively, and as the need of the human race seemed to require; so it was
not necessary for every single thing to be appropriated; but without
detriment to the peace of the race some things could, and others should,
remain in the primeval common condition. For if things are useful indeed to
men, but yet inexhaustible, so that they can be free for all to use, and
still the individual's use is not thereby more niggardly, it would be
superfluous and foolish to wish to divide them. Examples are the sun's heat
and light, air, running water, and the like. Here belongs also the vast
ocean, lying between great continents, so far as concerns those parts of it
very distant from the coasts; since not only is it entirely sufficient for
the varied needs of all, but also its custody is morally impossible for any
one people. For when a thing is so constituted that others cannot by any
means be excluded from its use, to divide it, or make property of it, is
superfluous, and also apt to furnish occasion for vain litigation.
5. The methods of acquiring ownership are either original or derivative. By
the former a thing becomes property in the beginning; by the latter an
ownership already established passes from one to another. Again the former
are either absolutely such, -- and by these ownership of the substance of a
thing is acquired, -- or relatively, by which property already ours receives
some accession.
6. After individual ownership of things had been adopted among men, it was
agreed by them that whatever had not come under the primitive division
should fall to the occupant, that is, the first man to seize the thing by
physical means, with intent to keep it for himself. Hence to-day the only
original method of acquiring ownership of the substance of a thing is
occupancy. By this means then we acquire desert regions which no man ever
claimed as his. These become the property of him who first enters them with
the intent to keep them for himself, bringing them under cultivation, and
establishing certain limits up to which he claims ownership. But when a
numerous company jointly occupies any tract of land, the common practice is
to assign some part of it to the individual members of the company, and to
count the remainder as belonging to the whole company. By occupancy also are
acquired wild beasts, birds, fishes in the sea, rivers, or lakes; also
whatever is usually thrown up by the sea upon the shore; provided, however,
the promiscuous capture of things of this sort has not been interdicted by
the civil authority, or assigned to some particular person. If these are to
become ours, we must seize them by physical means, and bring them into our
power. By occupancy also we acquire things, when the ownership to which they
had previously been subject has been clearly extinguished. For instance,
things thrown away with the intent that they are no longer to be ours, or
things which we lose unwillingly in the first place, but later count as
abandoned. Here too belongs the treasure-trove, that is, money whose owner
is unknown. This falls to the finder, when it has not been ordained
otherwise by the civil laws.
7. But very many things which are subject to ownership do not always remain
in the same condition, but enlarge their substance by various kinds of
increase. Some others receive accession from without; still others bring
forth fruit; many have their value increased by the form which human
industry has added to them. All of which can be comprehended under the term
accessions, and they are divided into two classes. For some things are
produced by their nature alone, without act of man; some are procured by the
act and industry of men, either wholly or in part. With regard to these
there is this rule, that if a man is the owner of a thing, to him also
belong accessions and any profits; and that he who has made a new product
out of his own material, is the owner of that product.
8. Frequently, however, it has happened that other men, as the result of a
contract, or other means, have acquired a right to receive a certain benefit
from a thing belonging to us, or to hinder us from using a thing of ours
without restriction. These rights are commonly called servitudes, and are
divided into personal servitudes, in which an advantage accrues directly to
the person from the property of another; and real servitudes, in which the
advantage is derived from another's property through the medium of our own.
Among the former are numbered usufruct use, the right of dwelling, the
services of slaves. Again the real servitudes are divided into urban and
rural. In the former class are, for example, the servitude of a supporting
wall or column, that of windows, those which prevent the blocking of our
light or view, that which requires one to receive the drippings of a roof,
etc. To the latter class belong, for instance, right of passing, that of
driving, that of building a road or an aqueduct, of drawing water, of
driving cattle to water, of pasturage, etc. Nearly all of these have been
introduced as a result of proximity.
9. Among the derivative methods of acquisition there are some in which a
thing passes to another in accordance with the provision of a law, others in
view of an act of the former owner. And the result is either that a man's
entire property is transferred, or a certain portion thereof.
10. An entire property passes by law to another through the death of the
former owner in intestate successions. For it would be repugnant to the
general inclination of men, and not in the least conducive to the peace of
the human race, that property which a man had acquired with such labor in
his lifetime, should after the death of the owner be regarded as abandoned,
and open to the occupancy of anybody. Hence, under the guidance of reason,
it has been accepted among all peoples, that, if a man had himself made no
disposition of his goods, these should devolve upon those whom, in
accordance with the common affection of men, he is thought to hold most
dear. Such are regularly those who descend from us, and then others
connected with us by blood, each according to the degree of propinquity. And
though there are some men who, either on account of benefits received, or
out of peculiar affection, love certain strangers more than their own
relatives, still the interests of peace required men, neglecting the
affection of a few, rather to follow the common inclination of mortals, and
to observe the simplest method of succession, and one exposed to no
intricate disputes. These would have cropped out, if benefactors and friends
could compete with those who rest their claim upon blood. And if the man had
any wish to prefer benefactors or friends to kinsmen, he should have made an
express statement of the matter.
11. It follows then that a man's nearest heirs are his own children, whose
maintenance and rearing Nature has earnestly commended to parents; and every
parent is supposed to have wished to provide for them as amply as possible,
and to leave to them by preference whatever remains to himself. And by
children we understand especially those born in lawful wedlock. For reason
itself, and the proprieties of the civil life, and the laws of the more
civilized nations, favor such more than natural children. But what has been
said does not hold good, if a father has, for sufficient reasons, refused to
recognize a person as his son, or has disinherited him on account of
shameful depravity. Under children are further included those who belong to
the remoter degrees. These the grandfather is bound to support, their own
parents being dead; and hence it is entirely just that grandchildren should
share the grandfather's estate, along with their uncles on both sides.
Otherwise, in addition to the misfortune of losing their father prematurely,
they would be excluded from the grandfather's estate. When there are no
descendants, it is right that the property of deceased children devolve upon
their parents. Those who have no surviving children and parents, will be
succeeded by their brothers. When these too are lacking, the heirs will be
determined by their degrees of consanguinity to the deceased. In order,
however, to avoid the suits which can very frequently arise in these cases,
and that the matter may be well adjusted to the interests of the state, we
find that in most states the order of succession has been precisely
determined. And it is safest for citizens to follow this order, unless
important reasons force them to make a special disposition.
12. By act of the former owner an entire property passes after his death to
another by virtue of a will. For as a poor consolation for our mortality it
has been established among most peoples that a man can in his lifetime
transfer his possessions in the event of death to him whom he loves most.
But whereas in the earliest times it appears to have been the practice, when
death was imminent, to name one's heirs openly, and to pass over the
property actually into their hands, later, for weighty reasons, many peoples
preferred another form of will. This namely enabled a man, at any time he
pleased, either openly to indicate his last will, or silently to
authenticate it in writing. And this he could change at his discretion,
while from it the heirs named viva voce or in writing derived no right until
the death of the testator. Such last wills deservedly enjoy high favor; yet
they must be regulated as the interests of relatives and the good of states
requires. Hence the latter are accustomed to prescribe by law how a man is
to draw up his will. And whoever departs from such prescription, is unable
to complain that his will has been disregarded.
13. Among the living, things pass by act of the former owner either gratis,
or by means of a contract. Transfers of the former kind are called
donations. Of contracts we must treat later.
14. Sometimes things are transferred even against the will of the former
owner, and in states this is especially by way of penalty, when men
convicted of crimes have, now all their possessions, now a certain part of
them, taken away, and applied to the state or else to the injured party. So
too in war, things are taken away from unwilling owners by an enemy in
superior force, and acquired by him who seizes them. But the former owner
does not lose his right to recover them by similar violence, until by a
subsequent treaty of peace he has renounced all claim to them.
15. Finally, there is a particular kind of acquisition called usucapio, or
prescription, by which a man who in good faith and by fair title has gained
possession of a thing, and has held it long in peace and without
interruption, is at length regarded as its absolute owner, so that he can
repel the old owner, if he wishes later to reclaim it. The reason for the
introduction of this right was partly that a man who neglected for a long
time to reclaim a thing was considered to have abandoned it, since in the
long interval it was thought that opportunities therefor could scarcely have
been lacking; and partly because the interests of peace and quiet required
that possessions should finally be put beyond controversy. And this
especially because it seemed much more serious to be deprived of a thing
gamed in good faith after long possession, than to lack permanently a thing
formerly lost, the desire for which had been dissipated long ago. But in
states peace and quiet require that certain periods he defined, within which
prescription may be completed, according as reason and the need of the state
suggest
______
CHAPTER XIII
On the Duties Which Result from Ownership Per Se
1. Out of the introduction of ownership these duties have come into being
among men: in the first place, that every man is bound to allow another (not
a public enemy) to enjoy his possessions in quiet, and not bring himself to
injure them, make off with them, or appropriate them, by force or by fraud.
By this duty thefts, robberies, and similar crimes aimed at the property of
others, are forbidden.
2. In the second place, when a thing belonging to another has come into our
hands without our guilt, and with good faith on our part, and we still have
it in our power, we are bound, so far as in us lies, to bring about its
return to the power of its legitimate owner. We are not, however, bound to
restore it at our expense, and if we have incurred any in order to keep it,
we have a right to recover, or to retain the thing until the expenses have
been paid. And we are not actually bound to restore until we are informed
that the thing belongs to another. For then we are bound to report that the
article is in our possession, and that, so far as we are concerned, it is
open to the owner to recover it. But if we have acquired the thing by a just
title, we are not ourselves bound to call the matter in doubt, and as by a
public proclamation to ask if anyone wishes to claim it as his own. And this
duty outweighs particular contracts, and allows an exception to them; for
example, if a thief shall deposit stolen goods with me unaware of the theft,
and later the true owner appears, I shall be bound to restore the property
to him, not to the thief.
3. In the third place, if a thing belonging to another, acquired in good
faith, has been consumed, it is the part of duty to restore to the owner an
amount equal to that by which we have been enriched, that we may not gain by
another's undeserved loss.
4. From these duties then the following conclusions are derived:
(1) A bona fide possessor is not bound to make any restitution, if the thing
has perished, because he has neither the thing itself, nor gain therefrom.
5. (2) A bona fide possessor is bound to restore not only the thing, but
also the still existing fruits of it. For naturally the owner of the thing
is also owner of the fruits. But the possessor may subtract all expenses
incurred for the thing or its care, that the fruits might be obtained.
6. (3) A bona fide possessor is bound to restore the thing and the fruits
that have been consumed, provided he would otherwise have consumed as much,
and can recover the value of the thing he is obliged to restore from him of
whom he received it. For in consuming another's property and sparing his own
he has enriched himself.
7. (4) A bona fide possessor is not bound to make good fruits which he has
neglected. For he has neither the thing, nor anything that has taken its
place.
8. (5) If a bona fide possessor has had something belonging to another
presented to him, and then presents it to a third party, he is not bound,
unless in any case he was going to make an equal gift in consequence of some
duty. For then it will be a gain to have spared his own property.
9. (6) If a bona fide possessor has for a real consideration acquired
something belonging to another, and has then alienated it in any way, he is
not bound, except in so far as he has made gain out of it.
10. (7) A bona fide possessor is bound to restore another's property, even
though acquired for a real consideration, and cannot reclaim what he has
spent from the owner, but only from the person from whom he received the
thing; except in case the owner could probably not have recovered possession
of his property without some expense, or has voluntarily offered a reward
for information.
11. The finder of something which the owner was probably sorry to lose,
cannot take it up with the intention of withholding it from the owner when
he comes to inquire. But when the owner does not appear, the finder has a
right to retain it for himself.
______
CHAPTER XIV
On Value
1. After ownership had been introduced, and since all things were not of the
same nature, and did not yield the same service to human necessities, and no
one had that abundance which he desired for his needs, it soon became
customary among men to exchange commodities. But it very often happened that
things of unlike nature or use had to be transferred, and hence, that one
party or the other might not suffer in this sort of exchange, it was
necessary for human convention to assign things a quantity, according to
which they could be compared and balanced with one another. This also was
the case with actions, which men were unwilling to render for others'
advantage for nothing. This quantity usually goes by the name of value.
2. Value is divided into common value and value par excellence. The former
is seen in things, and actions or services, which enter into trade, in so
far as they bring men some use and pleasure. The latter is seen in money, in
so far as it is understood virtually to contain the price of all things and
services, and to furnish them a common standard.
3. Of common value the foundation as such is that aptitude of the thing or
the service, by which it can contribute something directly or indirectly to
the necessities of human life, and to make it more comfortable or agreeable.
Hence we usually call things that serve no use at all things of no value.
Yet there are some things most useful for human life, upon which things no
definite value is understood to have been set, either because they do not
admit of ownership, and necessarily so, or because they are unsuited for
exchange, and hence withdrawn from trade, or because in trade they are never
considered otherwise than as an addition to something else. Moreover the
law, human or divine, in placing certain actions outside of trade, or
forbidding one to perform them for hire, is understood also to have deprived
them of value. So too, inasmuch as the upper parts of the air, the ether,
and the heavenly bodies, and the vast ocean, are exempt from human
ownership, no value can be assigned to them either. Thus a free person has
no value, because free men are not articles of commerce. Thus sunlight,
clear and pure air, the fair face of the earth, in so far as it merely
feasts the eyes, and wind, and shade, and the like, considered in and by
themselves, have no value, since men cannot enjoy such things without the
use of the earth. Yet these very things are of great moment in increasing or
diminishing the value of regions, lands, and estates. So it is unlawful to
set a price upon sacred acts, to which a moral effect has been assigned by
divine ordinance. This crime is called simony. And a judge also commits a
trine, if he sells justice.
4. Moreover, there are various reasons why the value of one and the same
thing is increased or diminished, and one thing even preferred to another,
though the latter may seem to have an equal or greater use in human life.
For in this matter the necessity of the thing, or its exalted usefulness,
are so far from always holding the first place, that we rather see men hold
in lowest esteem the things with which human life cannot dispense. And this
because nature, not without the singular providence of God, pours forth a
bountiful supply of them. Hence an increase of value tends to be produced
especially by scarcity; and this is made much of when things are brought
from distant parts. Hence love of display and luxury have placed enormous
prices on many things with which human life could very comfortably dispense,
for instance pearls and jewels. But for articles in everyday use prices are
raised especially when their scarcity is combined with necessity or want. In
the case of artificial commodities, scarcity apart, the price is chiefly
raised by the fineness and elegance of the workmanship which they display,
sometimes too by the fame of the artificer, also the difficulty of the work,
the scarcity of artisans and workmen, and so forth. As for services and
acts, difficulty enhances their price, as do also skill, utility, necessity,
the scarcity or rank or freedom of the agents, and finally even the
reputation of the art, as being accounted noble or ignoble. The opposites of
these things usually lower the price. Finally, at times a certain thing is
highly rated, not by everybody, but by individuals, in consequence of a
special affection, for example, because he from whom it came to us is made
much of by us, and the thing was given to express his affection; or because
we have grown accustomed to it, or it is a memorial of some great
occurrence, or by its aid we have avoided a great danger, or it was made by
our own hands. This is called sentimental value.
5. But in fixing the prices of single things, other matters too are usually
considered. And among those who live together in natural freedom the values
of single commodities are defined only by agreement of the contracting
parties. For they are free to alienate or acquire what they please, and have
no common master to regulate their dealings. In states, on the other hand,
prices are determined in two ways: first, by decree of a superior, or by
law; secondly, by the common estimate and judgment of men, that is, the
custom of the market, with the consent also of the contracting parties. Some
are in the habit of calling the former the legal price, the latter the
common. When the legal price has been established in favor of the buyers,
which is the more usual case, the sellers are not permitted to demand more.
Yet, if they are willing to receive less, they are not forbidden to do so.
Thus when the wages of laborers have been officially rated in favor of those
who hire, the laborer may not demand more, but is not forbidden to receive
less.
6. The common price, to be sure, not being fixed by law, admits a certain
latitude, within which more or less can be, and usually is, given and
received, according as the contracting parties have agreed. Generally,
however, it follows the custom of the market. In this account is usually
taken of the labor and expense ordinarily incurred by merchants in
transporting and handling their wares; also of the manner of buying and
selling, whether wholesale or retail. And sometimes the common price is
suddenly changed, according to the abundance or scarcity of purchasers,
money, or wares. For scarcity of purchasers and money (due to some special
reason), and also abundance of wares, diminish the price. On the other hand
abundance of would-be-purchasers and of money, and scarcity of wares, raise
the price. So too it tends to lower the price, if wares seek a purchaser. On
the contrary the price is raised when the seller is actually besought, and
will not sell otherwise. Finally this too is usually considered, whether a
man offers ready money, or puts off payment for a time; since time also is a
part of the price.
7. But after men departed from their primitive simplicity, and various kinds
of gain were introduced, it was readily understood that common value alone
was not sufficient for the transaction of men's affairs and their increasing
dealings. For at that time dealings consisted in barter only, and the
services of others were not to be had except by an exchange of service, or
by surrendering something. But after we began to desire such a variety of
things for convenience or pleasure, it certainly was not easy for every man
to possess the things which another would wish to exchange for his own, or
which were equal in value to the other's things. And in civilized states,
where the citizens are marked off into different classes, there must
necessarily be several classes that would be entirely unable to make a
living, or scarcely able to do so, if the old-time simple exchange of
commodities and services were still in vogue. Hence most nations, attracted
by a richer mode of life, have seen fit by convention to impose a value par
excellence upon a certain thing, in order that the common values of the
other things might be tested by this, and virtually contained in the same;
so that by this medium one could acquire anything that is for sale, and
engage conveniently in any sort of dealings and contracts.
8. For this purpose most nations have decided to employ the nobler and rarer
metals. For they possess a very compact substance, so as not to be worn away
easily in use, and also they admit of division into many small pieces. And
they are no less convenient to keep and handle, while on account of their
rarity they can equal the value of many other things. Sometimes, however,
from necessity, and, among some nations, from lack of metals, other things
have been employed in place of coins.
9. Moreover, in states the right to define the value of a coin belongs to
the highest authorities, and hence official markings are usually impressed
upon the coin. In this determination of value, however, the general
estimation of neighboring nations, or those with whom we have dealings, must
be considered. For otherwise, if a state should set an excessive valuation
upon its coins, or not properly alloy their material, it will put a serious
check upon the commerce of its citizens with foreigners, at least as regards
all that cannot be settled by mere barter. And for this very reason no rash
change should be made in the value of coins, unless the extreme necessity of
the state should require it. But, with the increase of gold and silver, by
degrees the value of coins decreases as it were of itself, in comparison
with the price of lands and anything depending thereon.
______
CHAPTER XV
On Contracts Which Presuppose the Prices of Things, and the
Duties Thence Derived
1. An agreement in general is the consent and convention of two or more
persons to the same purpose. But because frequently simple agreements are
distinguished from contracts, the distinction seems to consist particularly
in this, that we give the name of contracts to any such agreements as
concern things or actions involved in trade, and hence presuppose ownership
and prices. But such conventions as are entered into concerning other
matters, are denoted by the common term agreements. And yet, to some of
these the terms agreement and contract are indifferently applied.
2. Contracts can be divided into the gratuitous and the onerous. The former
bring some advantage gratis to one of the contracting parties, for example,
a commission, a loan, a deposit; the latter bind both parties to an equal
burden, for in these something is furnished or given, with the intent that
an equivalent be received.
3. All onerous contracts, moreover, have this feature, that equality must be
preserved in them, in other words, that each of the contracting parties make
an equal gain; and where an inequality arises, the one who has received less
acquires a right to demand that his lack be made good, or the contract be
broken off entirely. This, however, is particularly the case in states,
where prices are fixed by the usage of the market, or by law. But to find
and determine this equality, it is required that the thing which is the
subject of contract, together with its qualities, if they arc of any
importance here, be known to both of the contracting parties. Hence also he
who is to transfer something to another by contract, must indicate not only
its estimable qualities, but also a lack of the same, and defects. For
without this a just price cannot be settled. Yet such circumstances as do
not in themselves affect the thing, it is not necessary to indicate. And
defects already known to both need not be indicated. And he who knowingly
acquires anything defective, has himself to blame.
4. Moreover in contracts of this kind equality must be so far maintained,
that an inequality discovered later must be corrected, even though there was
no concealment, and no fault of the contracting parties, for instance,
because a fault was not noticed, or a mistake made in the price. And
something must be taken from him who has more, and given to him who has
less. Yet in order to avoid a mass of litigation, the civil laws give relief
here in general only to very great injuries. For the rest they bid each man
look out for his own interests.
5. Gratuitous contracts are especially these three: commission, loan, and
deposit. It is a commission when one undertakes for nothing the management
of another's affairs, when the latter requests it, and intrusts the matter
to the former. And this happens in two ways: so that the method of
management is either prescribed or left to his judgment and skill. In this
contract one must conduct himself with the highest honor and the greatest
industry, since in general no one gives a commission except to a friend, and
one of whom he has a high opinion. And so, on the other side, the trustee
must be indemnified for expenses incurred in carrying out his commission,
also for losses suffered in consequence of the same, and properly resulting
from the affair committed to his charge.
6. It is a loan when we grant another the use of something of ours for
nothing. In this one must take pains to keep and handle that same thing
carefully and with the greatest diligence; and not apply it to other uses,
or further than the lender permitted; and restore it uninjured, and just as
it was received, except for what has been lost by ordinary use. But if it
was loaned for a fixed time, and meantime the owner begins to have great
need of it, owing to some chance not foreseen at the time of making the
loan, it must, upon request, be restored to him, without subterfuge. If,
however, the thing lent has perished by some chance cause unforeseen,
without any blame on the part of the borrower, if it would have perished
even in the possession of the owner, the estimated value need not be paid.
Otherwise it seems fair that the borrower should pay the estimated value,
since the owner would not have lost it, if he had not been generous toward
the other. Vice versa, if any useful or necessary expense has been incurred
for the thing lent, aside from what regularly attends the use of the thing,
it must be refunded by the owner.
7. It is a deposit when we intrust to the honor of another a thing that is
ours, or concerns us in some way, that he may guard it for nothing. In this
it is required that the thing intrusted be diligently guarded, and restored
whenever it pleases the depositor; unless restitution would be injurious to
the owner or others, and for that reason must be postponed. And it will not
be permissible to use a thing deposited, except with the consent of the
owner, if indeed it would in any way be the worse for use, or if it is to
the owner's interest that it be not seen. And if a man has ventured to do
so, he will make good any risks incurred in the use of the thing. Also it is
not permitted to take a thing deposited out of the wrappings or receptacles,
in which it was inclosed by the depositor. Moreover, it would be a great
disgrace and more shameful than theft, to deny a deposit; and it is far more
disgraceful, to deny a deposit of charity, that is, something deposited in
view of the danger of fire, the fall of a house, or a riot. On the other
side, expenses incurred for a deposit must be refunded by the depositor.
8. Among the onerous contracts, about the most ancient, and that by which
alone trading was carried on before the invention of money, is barter, in
which each side gives a thing for a thing of equal value. Yet, even today,
after the invention of money, there is a kind of barter particularly common
among merchants, by which commodities are not simply compared with each
other, but first appraised in money, and then turned over to their
respective purchasers in place of money. But a different transaction from
the contract of barter is a reciprocal donation, in which it is not
necessary for equality to be observed.
9. Buying and selling is that by which, for a money consideration, ownership
of a thing, or a right equivalent thereto, is acquired. Its simplest form is
when the price is first agreed upon, and then the buyer at once offers and
hands over the price, and the seller the commodity. Often, however, it is
agreed that the commodity shall be at once delivered, but that the price is
to be paid after a certain interval. Sometimes the price is agreed upon, but
that the delivery of the property or commodity shall take place after a
certain time. In this it seems equitable that, before the expiration of that
time, the property be at the risk of the seller. But if the buyer should
delay after the time has elapsed, and not see to it that the property be
delivered to him, it will henceforth be lost to the buyer. To the contract
of buying and selling various agreements-are commonly added; for example the
addictio in diem [provisional sale], by which property is sold on such terms
that the seller has the privilege of accepting a better offer from another
party, if made within a certain time. There is also the lex commissoria
[forfeiture clause], when it is agreed that, if at a certain date the price
has not been paid, the property has not been bought. Also the retractus
[recall], or an agreement to sell back again; which is so worded that if the
price is not offered within a certain rime, or at all, the buyer is bound to
restore the property to the seller. Or the agreement may be that, if the
property is offered to him, the seller shall be bound to restore the price;
or that, if the buyer is going to sell again of his own motion, the former
seller shall have precedence over all others in purchasing; and this is also
called the right of refusal. So too, it is common for the seller to reserve
a certain part of an estate he has sold, or a certain use of that part.
There is another kind of purchase which they call per aversionem [without
inspection], when many things of unequal value are appraised not singly, but
valued and bought at haphazard and in the lump. In that form of sale which
we call auction, the thing is at last knocked down to that one of several
bidders who has offered the most. Finally, there is a kind of purchase in
which no definite thing is bought, but merely a probable hope. In this some
hazard is involved, so that neither the buyer should complain, if the hope
disappoints him, nor the seller, if it goes far beyond.
10. Letting and hiring is a contract by which the use of a thing, or
services, are assigned to a man for pay. In this, while it is regularly
customary to agree in advance upon the payment, still, if a man has assigned
to another his services or the use of his property, without previous
determination of the price, he is understood to expect as much as comports
with common usage and the equity of him who hires. With regard to this
contract, it is to be observed that, if the thing let has perished utterly,
the person who hires is henceforth no longer held for payment or rent. But
if the thing let has a certain and definite use, the owner is bound to
guarantee its fitness for that use; and correspondingly, if it suffers any
damage, the hirer subtracts from his rent in proportion to the diminished
usefulness of the thing. But if the property let has an uncertain yield, and
contains an element of chance, an abundant crop is so much gain for the
lessee, and in the same way a bad crop is his loss. And in strict law
nothing is to be subtracted from the rent on account of that leanness,
especially since the leanness of one year is usually balanced by the fatness
of the next. Exception is made if the accidents which robbed him of his crop
are very rare, and if the lessee is presumed not to have thought of taking
that risk upon himself. For it is certainly fair that such accidents should
have the effect of diminishing or remitting the rent. But just as the lessor
is bound to put the thing itself into usable condition, and assume the
necessary expenses, so the lessee must use it as a good householder, and
restore whatever has been lost by his own fault. And he who has engaged to
have some work done for him, makes it good in the same way, if the matter is
spoiled by his own fault. If a man has let out to another his temporary
services, and by any chance has been prevented from performing the same, he
cannot claim his wages. But if one has hired the continuous services of
another, and the man has become useless for service for a moderate length of
time, owing to illness or other chance, it is inhuman for one either to
remove him entirely from his situation, or to deduct from his compensation.
11. In the contract of mutuum [loan], a replaceable thing is given to a man,
on the understanding that after an interval he is to return the same kind in
the same quantity and quality. And the things usually given in loan are
called replaceable, i.e., admitting of being replaced in their kind, because
anything of that kind can assume the role of another, so that, if one has
received of the same kind, quantity, and quality, he is said to have
received what he gave. Also, the same things are determined and specified by
weight, number, and measure, from which point of view they are also commonly
called quantities, as distinguished from specific commodities. A loan is
made moreover, either gratis, so that no more is received than was given, or
else with some profit, which is called interest. And this is not repugnant
to natural law, if indeed it be moderate, and in proportion to the gain
which the other makes out of the money, or other loan, and to my loss, or
cessation of profit, incurred by the absence of my property. Also if it be
not exacted from the poor, for whom a loan takes the place of alms.
12. In the contract of partnership two or more persons contribute their
money, property, or services to this end, that the resulting profits may be
divided pro rata among them all; and that, if any loss is incurred, this in
the same way is to be borne pro rata by each of them. In this partnership it
is a duty to show honor and industry; and likewise one must not withdraw
prematurely from the same to the detriment of a partner. But once the
partnership has been dissolved, after subtraction of profit and loss, each
receives as much as he put in. But in case one contributed money or
property, the other services, we must consider the manner of that
contribution. For, when the services of the one have to do only with
handling the other's money or property, or selling for him, their shares in
the profits are determined by the relation between the profit on the money,
or property, and the value of the labor, and the safety or loss of the
capital concerns only him who contributed it. But when the labor is spent
upon the improvement of something contributed by the other, the first is
understood to have a share in the thing also, in proportion to the extent of
the improvement. But when men have entered into a partnership of their
entire property, the several partners must faithfully contribute what they
gain, and conversely they are supported out of the common stock, each
according to his condition. But should the partnership be dissolved, the
division of property would be in proportion to what each brought into the
partnership in the beginning; and no questions are asked as to whose
property produced the gain or loss to the partnership, unless it was
otherwise agreed.
13. There are also a number of contracts which involve chance Among these
one may number wagers, in which one affirms, and the other denies, the truth
of some event not yet known to either, and a certain sum is deposited on
each side, to fall to that one with whose statement the event is found to
agree. Here belong all kinds of games, in which there is competition for a
prize. Among these, however, less hazard belongs to those which include a
contest of wits, skill, adroitness, or strength. In some of them wits and
chance display equal force. In others finally chance predominates. And it is
incumbent upon the rulers of a state to consider how far the toleration of
contracts of this sort is of advantage to the state or individuals. To this
class belongs the raffle, i.e., when a number of persons buy something by a
common contribution, and then decide by lot so which one of them the thing
is to fall entire. Also the pot of fortune, or lottery, i.e., when a certain
number of lots or small sheets, inscribed and blank, are thrown into an urn,
and then one buys the privilege of drawing them out, so that he who does so
receives that thing which the inscription names. Related to these contracts
is insurance, or the contract of avoiding a risk and making the same good,
by which a man, upon the receipt of a certain sum, takes upon himself and
insures the risk which wares to be transported to other places are going to
run, so that, if these happen to be lost, the insurer is bound to restore
their value to the owner.
14. For the greater solidity and security of contracts sureties and pledges
are frequently added. In the case of a surety, another man. who is thought
suitable by the creditor, takes upon himself, as a kind of reserve, the
obligation of the principal debtor, so that, if the latter does not pay, the
other takes his place, with the understanding, however, that what he has
spent must be refunded to him by the principal debtor. But, though the
surety cannot be held to a larger sum than the principal debtor, it is not
unreasonable for the former to be held more strictly to account than the
latter, since more confidence was had in him than in the other. But
naturally the principal debtor is to be called upon before the surety,
unless the latter has taken the other's obligation entirely upon himself, in
which case he is called an expromissor [promisor]. But if several have
become sureties for one man, each is to be called upon merely pro rata;
unless one of them happens to be insolvent, or there is no opportunity to
call upon him. For in that case the others will be burdened with his share.
15. Again, for the security of a loan, the creditor often has the debtor
give or assign him some thing, called a pledge or mortgage, until the debt
has been paid. The object of this is not only that the debtor may be urged
to payment by the desire to recover his property, but also that the creditor
may have at hand a source of payment. And for that reason pledges are
regularly of a value equal to the debt itself, or greater. But the objects
which are pledged are either productive or unproductive. With regard to the
former, it is common to add the contract of antichresis [reciprocal usage],
i.e., that the creditor may gather the fruits of the pledge, in place of
interest With regard to the latter, the lex commissoria [forfeiture clause]
is added, namely that the pledge is to fall to the creditor, if payment has
not been made within a certain time. And this is naturally not unfair, when
the pledge is not more valuable than the debt, plus the interest for the
interval, or when it does exceed, the excess is restored to the owner. But,
as the creditor must restore the pledge after payment, so in the meantime he
is bound to take no less care of it than of his own possessions. And when
there has been no contract of reciprocal usage, and the thing is of a kind
to be worn out by use, or if the debtor's interests are in any way involved,
the creditor cannot use the thing without his consent. A mortgage differs
from a pledge in this, that the latter is constituted by delivery of the
thing, while the former, as the thing is not delivered, consists in the bare
assignment of something, especially something immovable, from which, in case
of non-payment, the creditor can recover his loan.
16. What are the duties of contracting parties, however, is entirely clear
from the purpose and nature of these contracts.
______
CHAPTER XVI
The Methods of Dissolving Obligations Arising from
Agreements
1. Among the methods of dissolving obligations arising from agreements, and
so of terminating the duties thence derived, the most natural is the
fulfillment or payment of that in regard to which the agreement was made.
Regularly it is the debtor who is bound to pay; but, if the amount is
furnished by another in the name of the contractor of the obligation, this
last is dissolved; provided it does not otherwise make a difference, by whom
fulfillment is made. If, however, one pays for another with no intention to
make him a present, one can recover from him the amount expended. Moreover,
payment must be made to the creditor, or to a person whom he has delegated
to receive the debt in his name. And finally one must perform or pay the
very thing agreed upon (not something else in its place), entire, not
mutilated, not a mere part, not divided, and at the place and time agreed
upon. Yet the consideration of the creditor or the inability of the debtor
may compel the former to put off the date of payment, or to split the amount
into instalments, or even to accept one thing for another.
2. Obligations are also brought to an end by compensation, which is a
balancing of credit and debit, that is, when a debtor is freed because the
creditor himself evidently owes him something of the same kind and value.
For, inasmuch as equality is identity, especially in things that are
replaceable, and since, if the debt is mutual, I must immediately return the
same amount that I have Just received, therefore, in order to avoid useless
payments, it is most convenient for each to make payment by retaining his
own. It is evident, moreover, that compensation can be applied properly to
replaceable things of the same sort, the time for whose payment is present
or past; but not to other things, or performances of a different nature,
unless they are both reduced to an estimate of their value, that is, to
money.
3. An obligation is further terminated by release or remission on the part
of him to whom the debt was due, and whose interest it was to have the
obligation fulfilled. This is brought about either expressly, by giving
signs that indicate consent, for example, a fictitious acknowledgment,
restoring or destroying the papers; or else tacitly, as when one himself
hinders the payment of the debt, or is responsible for such hindrance.
4. Obligations consisting in a performance on both sides are also commonly
dissolved by mutual dissent, if nothing has yet been done, unless positive
laws forbid. But when something has already been performed by the one party,
a release must be given by him, or there must be some other adjustment.
5. Moreover, an obligation is not so much dissolved as broken off by the
treachery of one party or the other. For when one does not perform what was
agreed, the other is not bound to perform what he undertook in view of such
performance. For in agreements the items of things to be performed are
implied as a condition in the subsequent items, as if one had said, "I shall
perform this, if you first perform that."
6. Obligations also expire when the status, upon which alone they depended
at the time, has been changed either by him who was bound to perform, or by
him to whom performance was due.
7. By time itself obligations expire, if their duration was dependent upon
some point of time, unless that duration shall have been extended by express
or tacit agreement of the parties. But the power to demand fulfillment of
the obligation must have existed during that period.
8. Finally, obligations which have their roots in a man's person are
dissolved by death. For the subject having been taken away, the accidents
also must be extinguished. But often an obligation is continued in the
survivors of deceased persons, and this either because the survivor out of
pious duty, or for other reasons, has taken upon himself to fulfill the
obligations of the deceased; or else because the obligation must be
satisfied out of the possessions of the deceased, which have passed with
that burden to the heir.
9. By substitution, one presents, with the consent of the creditor, one's
own debtor, that he may pay the debt instead of one's self. In this indeed
the creditor's consent is required, but not that of that third person, whom
I can assign, even without his knowledge and consent, to the other, if he is
willing. For it makes no difference to which of the two one pays, but a
great difference from whom one demands the payment of a debt.
______
CHAPTER XVII
On Interpretation
1. It is indeed true that in matters enjoined by authority, a man is not
bound beyond the intention of that authority, and that in matters to which
he elects to bind himself, he is not bound beyond what was his own
intention. And yet as one cannot judge of another's intention, except from
actions and signs that impress the senses, a man is consequently considered
in a human court as bound only to that which a sound interpretation of those
indications suggests. Hence, for a right understanding of laws, as well as
of agreements, and for the performance of the duty involved, it is of the
greatest importance to establish rules of sound interpretation, for words
especially, as the commonest sign.
2. With regard to ordinary terms this is the rule: words are regularly to be
interpreted in their proper and well-known signification, imposed upon them
not so much by propriety or grammatical analogy or consistency with
derivation, as by popular usage,
"to whom belongs
The rule, the law, the government of tongues."[11]
3. Terms of the arts are to be explained according to the definitions of men
versed in the particular art. But if technical terms are differently defined
by different persons, expressing in ordinary terms what we mean by the other
word makes for the prevention of suits.
4. Conjectures too are needed, to draw out the real meaning, if either
single words or a group of words are ambiguous; or if some parts of a
discourse seem to contradict each other, yet so that by applying a skillful
explanation they can be reconciled. Where the contradiction is certain and
evident, the later statement will annul the earlier ones.
according to the subject-matter. For the speaker is always presumed to have
in view the matter of which he was speaking; and hence the meaning of his
words is always to be adapted to the same.
6. As for the effect and consequences, this is the rule: when words, simply
and literally taken, would entail either no effect, or an absurd one, there
must be a slight departure from the commonly received meaning, in so far as
the necessity of avoiding the meaningless or the absurd requires.
7. From related statements are derived the strongest conjectures ; for a man
is presumed to be consistent Statements are related, locally speaking, or
merely as regards their origin. For the former this is the rule: if in some
passage of the same discourse the meaning has been plainly and clearly
expressed, obscurer wordings are to be interpreted by the plain expressions.
Related to this is another rule: in the accurate interpretation of every
discourse one must give attention to the preceding and following statements,
to which the intervening are presumed to adapt themselves and correspond.
For the latter kind of statement this rule is observed: an obscure
expression of one and the same man is to be interpreted by his own clearer
expressions, though manifested at a different time and place; unless it is
quite plain that he has changed his mind.
8. It is also of the greatest advantage to a search for the true meaning,
particularly in the case of laws, to examine the reason for the law, or that
cause and consideration which moved the lawgiver to make this law,
especially when it is evident that this was the one reason for the law. For
this we have the rule: the interpretation of a law which agrees with the
reason for its passage must be followed, and that which differs from the
same must in turn be rejected. Also, when the one adequate reason for a law
ceases, the law itself ceases. But when there were several reasons for the
same law, it does not at once cease entirely with one of these, since the
remaining reasons may suffice to sustain the force of the law. Often, too,
the mere will of the lawgiver is sufficient, though the reason for the law
may be unknown.
9. We must observe, besides, that many words have more than one
signification, a looser, and a stricter sense: also that the content is now
favorable, now invidious, now indifferent. The favorable is that which makes
equal terms for both parties, or regards the common advantage, or maintains
any formal acts, or promotes peace, etc. Invidious is whatever burdens one
party only, or one more than the other, or carries with it a penalty, or
nullifies an act, or changes existing conditions, or promotes war.
Indifferent is, for example, anything that does indeed change existing
conditions, but in the interest of peace. For these this is the rule: the
favorable is to be interpreted more broadly, the invidious more strictly.
10. From other sources than words there are also conjectures, which have
this effect, that an interpretation is sometimes to be broadened, sometimes
to be narrowed. Yet one may more easily find reasons which persuade one to
narrow an interpretation, than to enlarge it. The law, then, can be extended
to a case not mentioned in it, if it is established that a reason which fits
the present case was the only one which influenced the lawgiver, and was
considered by him in its general bearing, and in such a way as to include
similar cases as well. A law must also be extended to meet those cases which
are devised by the evil ingenuity of men, in order to outwit the law.
11. On the other hand, the restriction of words expressed in general terms
occurs either from an original defect of intention, or from a conflict
between a case that arises and the intention. That a man is presumed not to
have desired a thing from the beginning is understood (1) from an absurdity
which would otherwise follow; and this no man of sound mind is thought to
have desired. Hence general terms are to be restricted, in so far as
otherwise an absurdity would result from them. (2) From the absence of that
reason which alone prompted the man's will. Hence, under a general
expression, cases with which the one adequate reason for the law does not
square, are not included. (3) From the absence of the subject-matter, which
the speaker is always thought to have had in mind. Hence general terms are
always to be adapted to that same matter.
12. But the fact that a case subsequently arising conflicts with the
intention of him who made some disposition, is discovered either from the
natural reason, or from some sign of his intention. The former happens, if a
departure from equity would be unavoidable, unless certain cases were
excepted from the general law. For equity is the correction of that in which
the law fails on account of its universality. For since not all cases can be
foreseen, or stated, on account of their infinite variety, therefore, when
general terms are to be applied to special cases, we must except those cases
which the lawgiver would have excepted, if he had been consulted in regard
to such a case. But it is not permitted to have recourse to this equity,
unless sufficient indications compel us so to do. The most certain of these
is this: if it should appear, that the natural law would be violated, in
case one wished to follow strictly the letter of the human law. Next in
importance: if it be not indeed unlawful to follow the letter of the law,
but still, in a humane view of the matter, it seem too severe and
intolerable, whether for all men in general, or for certain persons; or if
the end appear not worth buying at so high a price.
13. Finally, exception must be made to a general expression, if words found
elsewhere do not indeed directly conflict with the present law or agreement,
but on account of a certain element in the situation cannot be observed at
the same time, here and now. Here, then, there are certain rules to be
observed, so that we can understand what law ought to be preferred, in case
both cannot at the same time be satisfied: (1) What is merely permitted,
gives way to what is commanded. (2) What must be done at a certain time, is
preferred to what can be done at any time. (3) An affirmative precept gives
way to a negative. Or when an affirmative precept cannot be met, without
violating the negative, the fulfillment of the former must be omitted for
the present. (4) As between conventions and laws otherwise equal, the
special is preferred to the general. (5) As between two performances, which
at a particular moment conflict, one of them having more honorable or useful
reasons than the other, it is proper for the latter to give way to the
former. (6) An agreement without oath yields to one with an oath, when both
cannot be satisfied at the same time. (7) An imperfect obligation yields to
the perfect. (8) The law of beneficence, other things being equal, yields to
the law of gratitude.
______
THE SECOND BOOK ON
THE DUTY OF MAN AND CITIZEN
BY
SAMUEL VON PUFENDORF
CHAPTER I
On the Natural State of Men
1. We have next to inquire about those duties whose performance is incumbent
upon a man, in view of the particular state in which we find him living the
common life. And by state I mean in general that condition in which men are
understood to be placed, for the exercise of a certain kind of actions.
Special rights also generally accompany that state.
2. The state of men is either natural or adventitious. The natural state can
be considered under three heads, so far as mere reason lights the way;
either in relation to God the Creator, or in relation to individual men, as
regards themselves, or as regards other men.
3. Viewed in the first way, the natural state of man is that condition in
which he was placed by the Creator, when He willed that man should be an
animal superior to all the rest. From this state it follows that man should
recognize and worship his Author, and marvel at His works; and also pass his
life in a very different manner from the brutes. Hence this state is
contrasted with the life and condition of the brutes.
4. In the second way we can consider the natural state of man, if we imagine
what his condition would be, if one were left entirely to himself, without
any added support from other men, assuming indeed that condition of human
nature which is found at present. Certainly it would seem to have been more
wretched than that of any wild beast, if we take into account with what
weakness man goes forth into this world, to perish at once, but for the help
of others; and how rude a life each would lead, if he had nothing more than
what he owed to his own strength and ingenuity. On the contrary, it is
altogether due to the aid of other men, that out of such feeble-ness we have
been able to grow up, that we now enjoy untold comforts, and that we improve
mind and body for our own advantage and that of others. And in this sense
the natural state is opposed to a life improved by the industry of men.
5. In the third way we consider the natural state of man according as men
are understood to be related to each other, merely from that common kinship
which results from similarity of nature, before any agreement or act of man,
by which one came to be particularly bound to another. In this sense we
speak of men as living together in the natural state, if they have no common
master, and one is not subject to the other, and they are not known to each
other by kindness or injury. In this sense the natural state is opposed to
the civil state.
6. Again, the character of this natural state can be considered either as it
is represented by a figment, or as it really exists. We have the former, if
we conceive that from the beginning a multitude of men came into being at
once, without any interdependence, as the story of the Cadmean brothers has
it; or else, if we imagine the whole human race as now so broken up, that
each man would govern himself apart, and none be bound to any by other bond
than similarity of nature. But the state of nature which really exists, has
this feature, that one is joined to some men by a special alliance, but with
all the others has nothing in common except one's humanity, and owes them
nothing on any other account. Such a condition now exists between different
states, and between the citizens of different nations, and formerly it
obtained among the scattered patriarchs.
7. For it is clear that the whole human race has never at one and the same
time been in the natural state. For those who were horn to our first
parents, from whom all mortals draw their origin, as the Holy Scriptures
relate, were subject to the paternal authority. Later, however, this natural
state did appear among some men. For the first men, in order to fill a world
still empty, and to seek a roomier habitation for themselves and their
flocks, left the paternal homes, separated in different directions, and
nearly every male set up a household for himself. Among their descendants,
who scattered in the same way, the special bond of kinship, and the
affection springing from it, gradually vanished, and there remained only
that community which results from a like nature; until later, when the race
had multiplied remarkably, and they had discovered the inconvenience of the
isolated life, by degrees the nearest neighbors united to form societies,
first smaller, then larger, by the voluntary or enforced union of several of
the smaller. Between these communities, as they are joined by no other bond
than that of common humanity, the natural state certainly still exists.
8. Now those who live in the natural state have this particular right, that
they are subject and responsible to none but God. From which standpoint that
state is called natural liberty; by which, unless there has been some
previous act of man, everyone is understood to be his own master, and
subject to the authority of no man. And from the same standpoint each is
accounted equal to every other, and neither is subject to him, nor holds him
in subjection to himself. Moreover, since the light of reason has been
placed in man, and, by its beams he can guide his actions, it follows that
every roan living in natural liberty depends upon no one for the regulation
of his conduct; but, in accordance with his own judgment and will, has the
power of doing everything that agrees with sound reason. And on account of
the common inclination, implanted in all creatures, a man can but endeavor
by every means to preserve his body and his life, and to banish what seems
to destroy life, and must employ the means to that end. For this reason, and
because in the natural state no one has another man as his superior, to whom
he has submitted his own will and judgment, therefore in that state every
one of his own judgment determines the fitness of means, and whether they
conduce to self-preservation or not. For, no matter how much he hears the
advice of another, it is none the less in his own power to decide whether he
wishes to approve of the other's advice or not. But that this
self-government be rightly conducted, it is required that it be undertaken
according to the dictate of right reason and the natural law.
9. However much the natural state allures by the name of freedom and
immunity from all subjection, still, until men have united into communities,
it has many added disadvantages, whether we imagine all men as existing
singly in that state, or consider the situation of the scattered patriarchs.
For if you conceive a man who even in adult age is left alone in this world,
and without any of the comforts and supports with which the ingenuity of men
has made life more civilized and less hard, you will see an animal, naked,
dumb, needy, driving away his hunger as best he can by roots and herbs, his
thirst by any water he chances upon, the severity of the weather by caves,
an animal exposed to the wild beasts, and alarmed when he meets any of them.
A life somewhat more civilized was possible among those who lived in
scattered families, -- a life, however, which could not be compared in any
way with civil life, not so much on account of want, which the household,
with its limited desires, seems fairly well able to banish, as because
security is not fully provided for there. And, to be brief, in the natural
state each man is protected by his own powers only, in the community by
those of all. In the former no one has a certain reward of his industry; in
the latter all have it. In the one there is the rule of passion, war, fear,
poverty, ugliness, solitude, barbarism, ignorance, savagery; in the other
the rule of reason, peace, security, riches, beauty, society, refinement,
knowledge, good will.
10. Moreover in the natural state, if a man does not willingly perform for
another what he ought under an agreement, or if he has injured him, or if
some controversy arises otherwise, there is no one who by authority can
compel the other to perform what he ought, or repair the injury, and can
thus settle the quarrel, as in states, where one may implore the aid of a
common judge. But because Nature does not permit us to go to war for any
cause indifferently, even where one is amply persuaded of the justice of
one's cause, therefore we must first try to see whether the matter can be
adjusted in a gentler way, namely, by a friendly discussion between the
parties, and by a pure (not conditionate) compromise, that is, an appeal to
arbiters. These arbiters should conduct themselves with fairness to both
sides, and in giving their decision make no concession to hatred or favor,
but regard solely the merits of the case. For this reason a man is not
usually taken as arbiter in a case in which there appears to be greater hope
of advantage or special distinction for himself from the success of the one
side, than from that of the other, and so where it is to his interest that
one of them win the case by whatever means. Hence also there should be no
agreement or promise between the arbiter and the parties, by virtue of which
he may be bound to pronounce in favor of the one. And if the arbiter is"
unable to find out what the fact is, either from the common confession of
the parties, or definite instruments, or unmistakable arguments and signs,
he will be obliged to find it out from the depositions of the witnesses.
These may indeed be constrained to tell the truth by the natural law, and
generally by the sanctity of an oath, still it would be safest not to admit
such persons as are so disposed towards one or the other of the parties that
their conscience must struggle as it were with favor, hatred, lust for
revenge, and other violent passion, or even some very close he, -- motives
which not all have firmness enough to conquer. Sometimes, too, quarrels are
ended by interposition of common friends, and this is with good reason
accounted one of the most sacred duties. But as for the performance, in this
state, that is each man's affair, when the other does not voluntarily
fulfill his obligation.
11. Again, although it was the will of Nature herself that there should be a
certain kinship between men, and that, by virtue of this, it should be wrong
for one to injure another, and -- better still -- right for every man to
spend himself for the advantage of others, nevertheless among those who live
together in natural liberty this kinship generally exerts a very feeble
force. Hence any man who is not our fellow-citizen, or one with whom we live
in the natural state, is to be regarded, not indeed as an enemy, but still
as an inconstant friend. The reason for this is that men are not only
perfectly able to injure each other, but for various reasons very often
willing to do so. For in some cases perversity of nature, or the passion for
ruling and possessing superfluities, spurs men on to injure others. Other
men, though of modest temper, rush to arms in the desire to preserve
themselves, and not to be anticipated by others. Many are matched against
each other by desire for the same thing, others by a rivalry of talent.
Hence in this state suspicions all but perpetual are rife, as are distrust,
the desire to undermine the strength of others, the passion for getting
ahead of others, or of strengthening one's self by the ruin of others.
Therefore, as it is the part of the good man to be content with what he has,
and not to attack others, nor seek their property, so the cautious man who
is devoted to his own welfare, believes all men his friends, with the
possibility, however, of presently becoming his enemies, and keeps the peace
with all, as something which can presently change into war. For this reason
also happy is that state regarded which even in peace thinks of war.
______
CHAPTER II
On Conjugal Duties
1. Among the adventitious states, or those in which a man is placed by some
previous act of man, the first place belongs to marriage. In itself it is
also the first example, we may say, of the social life, and at the same time
the nursery of the human race.
2. This much is certain to begin with, that the ardent and mutual propensity
of the sexes was ordained by an all-wise Creator, not for the satisfaction
of an empty pleasure (for this, if it were the only aim, would have
occasioned the greatest filthiness and confusion in the human race), but in
order that the life of married persons might be the more agreeable, and that
mankind might the more willingly devote itself to the propagation of
offspring, and endure the annoyances which attend the begetting and rearing
of the same. From which it follows that every use of the genital organs
which departs from these purposes is repugnant to the natural law. On this
account lust after another species, or the same sex, is forbidden; also any
filthy pollutions, and finally all intercourse outside of wedlock, whether
by mutual consent, or forced upon the unwilling woman.
3. The obligation to contract marriage can be considered either in respect
to the whole human race, or in respect to individuals. The former obligation
consists in this, that the propagation of the human species is by no means
to be carried on by promiscuous and unregulated intercourse, but must be
bounded certainly by conjugal laws, and so conducted by marriage only. For
without the latter, a seemly and well-ordered society of men, and the
practice of the civil life are unintelligible. As for the individuals, they
are bound to enter matrimony when a convenient opportunity therefor offers.
This, however, consists not only in age and generative power, but that there
be also the possibility of a suitable match, and the means to support a wife
and the children to be born, and then that the man be suited to play the
role of a paterfamilias. Unless, however, a man has the temperament for a
chaste single life, and feels that as a celibate he can accomplish more good
for the race or the state, than if he had a wife; especially when no dearth
of offspring is to be feared.
4. Between those who are about to enter matrimony there should be, and
usually is, an agreement, which in its regular and perfect form consists of
these heads: First, because the man (for it is in harmony with the nature of
both sexes that the contract begin with him) intends to seek offspring of
his very own, not supposititious nor spurious, therefore the woman must give
the man her promise that she will give none but himself the use of her
person. And in like manner the woman in turn requires the same stipulation
of the husband. Next, as nothing is more out of keeping with the nature of
the social and civil life, than a wandering and unsettled life, without a
definite home and abiding-place for the property; and as the bringing-up of
the common offspring is most conveniently carried on when both parents unite
their efforts; and since continuous cohabitation involves the greatest
amount of pleasure to the well-mated, and thereby the husband can also have
more certain knowledge of his wife's chastity; therefore the wife gives the
husband the further promise, that she will dwell with him continuously, and
in fact unite with him in closest society of life, and in the same family.
And in this we understand that there is contained a mutual promise of such a
life together, as the nature of that alliance requires. But it agrees best
with the natural condition of both sexes, not only that in marriage the
condition of the man should be the better, but also that the husband be the
head of the household which he has himself established. From this it follows
that in matters relating to marriage and the household the wife is subject
to the husband's direction. Hence also it belongs to the husband to
determine the home, and the wife cannot against his will go abroad, or sleep
alone. But it does not seem necessary to the essence of matrimony to have
such authority as includes the power of life and death, and severe
punishment, also the full power of disposing of any property of the wife.
This, however, is in some places established by special contracts between
the couple, or by the civil laws.
5. Moreover, though it is manifestly repugnant to the natural law that one
woman should cohabit with several men at the same time, still, for one man
to have two or more wives has been customary in many nations, and formerly
even in the Jewish people. Nevertheless, even disregarding the primitive
institution of marriage as related in the Holy Scriptures, it is, however,
established by right reason alone, that it is far more seemly and
advantageous for one man to be content with one woman. And this is what the
experience of all the Christian nations that we know of has approved these
many centuries.
6. And no less does the nature of so close a union show that marriage ought
to be perpetual, and not to be terminated, except by the death of one or the
other of the couple; unless the clauses of the original marriage contract
have been violated by adultery and base desertion. But for incompatibility
of character, not having the same effect as base desertion, a separation
merely as regards bed and board has been admitted among Christians, without
permission to proceed to a second matrimonial engagement. Among the other
reasons therefor is this, that facility of divorce may not foster perversity
of character; but rather that despair of another match may encourage
husbands and wives to an obliging disposition and mutual tolerance. But for
violation of the clauses of the marriage contract the injured party only is
released from the tie, which is continued in the case of the other, if
indeed the injured party shall so wish, and shall deign to be reconciled.
7. Marriage can be contracted lawfully, where the civil law does not
prohibit, by any man with any woman, if they have the age and physical
condition suitable for marriage, unless some moral impediment prohibits.
Morally one is prevented from taking another partner, if one is already
joined to a husband or wife.
8. But also a moral impediment to legal matrimony is found in a too close
relationship of blood or affinity. On this account, even under the natural
law, marriage between ascendants and descendants indefinitely is judged
sinful. And other marriages on the transverse line, for instance, with a
father's or mother's sister, or with a sister, and likewise among relations
by marriage, with a step-mother, mother-in-law, step-daughter, -- all these
are viewed with aversion not only by the divine law, but also by the laws of
civilized nations, and the consensus of Christians. For that matter, the
civil laws of many peoples have forbidden some remoter degrees, to hedge
about, as it were, the more sacred degrees above mentioned, that men may not
readily rush in to desecrate them.
9. But, as the civil laws are accustomed to add to other contracts and
affairs certain requisites, and if these have not been observed, those are
not held valid in the civil court, so it is also with marriage, so long as
certain solemnities are anywhere required by the civil laws in the interest
of seemliness and good order. Although these are outside of the natural law,
still, without them, those who are subject to the civil laws will not
contract a legal marriage; or at least such a union will not have the effect
of a proper marriage in the state.
10. The duty of the husband is to love the wife, to support, rule, and
defend her; of the wife, to love and honor her husband, to be a help to him,
not only in the generation and education of children, but also in assuming a
part of the domestic cares. On both sides the character of so close a union
requires that both be sharers as well in prosperity as in adversity, and
that, if any misfortune befalls one of them, this partner be sustained by
the other; and not less that they wisely adapt their ways to maintain mutual
harmony. Yet in this matter it is rather the part of the wife to yield.
______
CHAPTER III
On the Duties of Parents and Children
1. From marriage spring children, over whom paternal authority has been
established, -- the most ancient and at the same time the most sacred kind
of rule, under which children are bound to respect the commands and
recognize the superiority of parents.
2. The authority of parents over their children arises from two main causes:
first, because the natural law itself, in commanding man to be social,
enjoined upon parents the care of their children; and that this might not be
neglected, Nature at the same time implanted in them the tenderest affection
for their offspring. For the exercise of that care there is needed the power
to direct the actions of children for their own welfare, which they do not
yet understand themselves, owing to their lack of judgment. And then that
authority rests upon the tacit consent also of the offspring. For it is
rightly presumed that, if an infant had had the use of reason at the time of
its birth, and had seen that it could not save its life without the parents'
care and the authority therewith connected, it would gladly have consented
to it, and would in turn have made an agreement with them for a suitable
bringing-up. Actually, however, the parents' authority over their offspring
is established when they take up the child and nurture it, and undertake to
form it, to the best of their ability, into a fit member of human society.
3. But although the mother contributes no less than the father, to the
production of children, and so, physically speaking, the offspring is common
to both, we must inquire which of them has the better right to the children.
And in this one must make a distinction. For if the child has been born out
of wedlock, it will be originally the mother's, because in this case the
father can be known only by the mother's testimony. Also among those who
live in natural liberty and above civil laws, it can be arranged by
agreement that the mother, not the father, have the better right. But in
states, which were, of course, established by men, inasmuch as marriage
contracts regularly begin with the father, and he is the head of the
household, the father will have the better right. Consequently though a
child naturally owes its mother respect and gratitude, it is nevertheless
not bound by the commands of the mother, -- those at least which conflict
with the just instructions of the father. But upon the death of the father,
his right to his offspring, the non-adult at any rate, seems to be acquired
by the mother, and, in case she enters a second marriage, by the stepfather,
since indeed he succeeds to the responsibility and care of the natural
father. And one who undertakes the liberal education of a deserted child or
orphan, can of his own right exact filial respect from him.
4. But accurately to understand how great is the power of parents over their
children, we must first distinguish between the scattered patriarchs, and
those who have entered a community; and then between the power which the
father has as such, and what he has as head of his household. Upon the
father as such nature has enjoined that he bring up his children well, that
they may turn out fit members of human society, up to the time when they are
able to look out for themselves. Therefore so much authority is understood
to have been granted him, as suffices for this purpose. But it by no means
goes so far that parents can destroy their offspring in the mother's womb,
or after birth expose or kill it. For while progeny is called into being out
of the substance of parents, the result, however, is to place it in the same
human lot as themselves, and to make it capable of suffering an injury even
from the parents. Also this power is not thought to extend to exercising the
right of life and death on occasion of some offense, but merely so far as
moderate chastisement. For this has to do with a tender age, at which crimes
so black as to be expiated by death scarcely occur. But should a child
persistently spurn all discipline, with no hope of improvement, he can be
driven from the paternal home and disowned.
5. Moreover this power, thus narrowly interpreted, can be considered
according to the different ages of the children. For in the first years,
when the use of reason is still immature, all the children's actions are
subject to the parents' direction. In this period if any property is
transferred by others to the minor, the parent must accept and administer it
in place of the son, yet so that the ownership is acquired by the son
himself. It is, however, most equitable that the income should fall to the
father, until the son comes of age. So, too, whatever gain or profit comes
by the labor of the son, is rightly claimed by the father, on whom rests the
burden also of nourishing and educating the son.
6. In adult years, when the children have indeed mature judgment, but are
still a part of the paternal household, we can distinguish the authority
which the father has as father, from that which he has as head of the
household. Since the former kind has for its aim the proper education and
guidance of the children, it is clear that even adult children ought to
follow the authority of parents, as the wiser persons. And he who wishes to
be supported out of the paternal property, and in turn to succeed to it,
must adjust himself to the circumstances of the father's household, for the
control of the latter is unquestionably in the hands of the father.
7. But the patriarchs, who had not yet entered into communities, wielded in
their homes an authority like that of princes. Hence their children too,
still remaining in the household, were bound to respect their authority as
the highest. But later this household rule, and other rights as well, were
limited to suit the needs and proprieties of communities; and in one much of
their authority was left to fathers, in another little. Hence we observe
that in some states fathers had the right of life and death over their
children, to be exercised in case of crime; and that in others the same
right was taken away, that parents might not abuse their authority over
their children to the detriment of the public good, or to oppress them
unjustly; or for fear the tender affection of a parent might conceal vices
which would break out into public calamity; or else to avoid imposing upon a
father the necessity of pronouncing so stem a sentence.
8. But when a child has clearly departed from the paternal household, and
either established a new household of his own, or attached himself to
another, the paternal authority is indeed dissolved, but so, however, that
the debt of dutifulness and respect always remains, as something founded
upon the merits of the parents, which children are never, or very rarely,
thought fully to requite. And those merits consist not only in the fact that
children owe to parents their lives, the occasion of all blessings, but also
because they undertook their laborious and costly education, by which they
have molded them into fit members of human society, and often have provided
them with the means of passing their lives in comfort and abundance.
9. But, although the obligation to educate their children has been imposed
upon parents by nature, this does not prevent the direction of the same from
being intrusted to another, if the advantage or need of the child require,
with the understanding, however, that the parent reserves to himself the
oversight of the person so delegated. Hence also a father has not only the
right to intrust the instruction of a son to suitable teachers, but can also
give the son in adoption to another, if indeed any advantage is to be thus
gained for the son. And if he has no other means of supporting his child,
rather than let him die of want, the father can pledge the child, or sell
him into a slavery that is endurable, at least subject to re-consideration,
when the father shall come into more favorable circumstances, or some
relative is willing to ransom the child. But if a parent has inhumanly
exposed or cast off a child, whoever shall take up and educate the child,
will succeed also to the father's rights, so that the foster-child owes
filial respect to the man who has brought him up.
10. Again, as a father ought not, except for the weightiest reasons, to
drive a child from his household, while still needing education and his
assistance, so also the child will not go forth from the father's household
except with his permission. But, since it is usually on contracting a
marriage that children leave the paternal household, and it is certainly a
concern of parents, who is to be united to their children, and by whom they
are themselves to have grandchildren, therefore filial duty plainly requires
that children in this matter follow the consent of the father, and be not
united in marriage against his will. But if children have in fact contracted
and consummated a marriage against the parents' will, it does not seem to be
void according to the natural law, especially where they do not wish to
burden the father's household longer, and the match is not otherwise
improper. Hence, if such marriages are anywhere accounted void or
illegitimate, it is due to the civil laws.
11. The duty of parents consists chiefly in this, that they support their
children in comfort, and so shape their body and mind by skillful and wise
education, that they become fit and useful members of human and civil
society, good, wise, and men of character. Also to introduce them to a
suitable and honorable occupation; and, so far as reason and opportunity
permit, to establish and promote their fortunes.
12. The children's duty on the other hand is to honor their parents, that
is, to show them respect, not by outward signs alone, but much more in the
inward estimation, as authors of their lives and other great benefits; to
obey them, serve them to the best of one's ability, especially when they are
weakened by age or want; to undertake nothing of great importance without
their counsel and authorization; and finally patiently to bear their
peevishness or faults, if any are discovered.
______
CHAPTER IV
On the Duties of Masters and Servants
1. After the human race had begun to multiply, and it had been discovered
how conveniently the affairs of the household can be cared for by the
service of others, it soon came to be the practice to admit slaves into the
household, to perform the domestic tasks. And it is probable that in the
beginning these offered themselves voluntarily, being compelled by want or a
sense of their own incapacity; and that they bargained for a perpetual
supply of food and other necessaries, and so assigned their services to the
master permanently. Then, as wars became widespread, it came to be the
custom of many peoples, that those whose lives they had spared after capture
in war should be consigned to slavery, together with the offspring which
should thereafter be born to them. And yet among many peoples no such
slavery is in vogue, but all the domestic tasks are performed by hired
servants engaged for a time.
2. Moreover, as there are different degrees of slavery, so also the power of
the masters and the lot of the slaves vary. To a servant hired for a time
the master owes the wage agreed upon; and the former in turn owes the latter
the service agreed upon. And since in this contract the social lot of the
master is the better, therefore the servant of this kind also is bound to
show his master respect in proportion to his rank; and if he has done his
work with ill-will or neglect, he is liable to the master's correction. This
cannot go so far, however, as to inflict by his own authority serious bodily
harm, much less death.
3. But in case of the slave who has voluntarily assigned himself to a man in
perpetual slavery, the master owes him a constant supply of food and the
other things necessary to life; and the slave in turn is bound to perform
continual service, whatever the master has prescribed, and to make over
faithfully to the master whatever is yielded by his services. In these,
however, the master will humanely take account of the slave's strength and
skill, not to exact harshly a labor which exceeds his strength. The slave is
also subject to the chastisement of the master, not only to banish
carelessness in the performance of his task, but also that his habits may be
in harmony with the repute and the peace of the household. However such a
slave cannot be sold to another against his will; for he has of his own
motion chosen this master, and not another, and it makes a difference to him
which he serves. If he has committed a serious crime against one outside the
household, he is subject to the punishment of the civil authority, if in a
state; if in an isolated household, he can be driven out of it. But where
the crime has been committed against the isolated household itself, he can
be punished by his master even with extreme measures.
4. But the slaves who had been captured in war have been harshly treated in
the beginning by most masters, because something of the anger of an enemy
remained in their case, and also they had themselves threatened the worst to
us and our property. As soon, however, as mutual confidence has been reached
between the victor and the vanquished in such a case, with regard to the
slave's admission to the household, all previous hostility is understood to
have been forgiven. And then a master undoubtedly wrongs a slave, acquired
even in this way, either if he does not supply the necessaries of life, or
if he is unreasonably harsh towards him, and much more so, if he kills him
when not guilty of a crime that deserves it.
5. With regard to slaves who were carried off into that condition by force
in war, and those also who are purchased, it is the accepted practice that
they can be transferred, like our other possessions, to anyone we please,
and sold like chattels. Hence even the body of the slave is understood to
belong to the master. Here, however, humanity bids us never forget that a
slave is a man for all that; and so to treat him by no means as we do our
other possessions, which we can use, abuse, and destroy at our discretion.
And when one decides to dispose of such a slave, he should not be
deliberately or undeservedly assigned to those under whom an inhuman
treatment will await him.
6. Finally it is also the generally accepted custom, that offspring born of
slave parents should share their servile estate, and belong as a slave to
the mother's owner. It is defended by this argument: that it is right for
the fruit of the body to belong to him who owns the body. Also because such
offspring would clearly not have been born, if the owner had exercised the
right of war upon the parent. And also, since the parent has nothing of her
own, she has no way left her to support such offspring except out of the
master's property. Therefore, since the master provides nourishment for a
child of this kind long before its service can be useful, and the subsequent
services do not generally much exceed the cost of nourishment at the time,
it will not be permissible to escape from slavery against the master's will.
But it is manifest that, as such slaves born in the home come into slavery
through no fault of their own, there is no pretext for treating them more
harshly than the lot of perpetual hirelings admits.
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CHAPTER V
On the Impelling Cause for the Establishment of a State
1. Although there is scarcely any pleasure and advantage which it seems
cannot be obtained by the duties and situations so far enumerated, it
remains for us to investigate the question, why men nevertheless, not
content with those little first societies, have established the great
societies which go by the names of states. For it is from these foundations
that we must deduce the reason for the duties which attend the civil status
of men.
2. Here then it is not enough to say that man is by Nature herself drawn
into civil society, so that without it he cannot and will not live. For
surely it is evident that man is an animal of the kind that loves itself and
its interest to the utmost degree. When, therefore, he voluntarily seeks
civil society, it must be that he has had regard to some utility which he
will derive from it for himself. And though, outside of society with his
kind, man would have been much the most miserable of creatures, still the
natural desires and necessities of man could have been abundantly satisfied
through the first communities, and the duties performed out of humanity or
by agreement. Hence it cannot at once be inferred from man's sociability
that his nature does tend exactly to civil society.
3. This will be clearer, if we consider what condition arises among men from
the establishment of states; what is required, if one is to be truly called
a political animal, that is, a good citizen; and finally what in man's
nature is found to conflict with the character of the civil life.
4. The man who becomes a citizen suffers a loss of natural liberty, and
subjects himself to an authority which includes the right of life and death,
-- an authority at whose command one must do many things from which one
would otherwise shrink, and must leave undone many things which one greatly
desired to do. And then many actions must be referred to the good of
society, which often conflicts with the good of individuals. And yet, by
tendencies already inborn, man does not incline to be subject to anyone, but
to do everything at his own pleasure, and to favor his own interest in all
things.
5. We call a man a truly political animal, that is, a good citizen, if he
promptly obeys the commands of the rulers, if he strives with all his might
for the public good, and willingly subordinates thereto his private good, or
rather if he thinks nothing good for himself, unless it is likewise good for
the state too; and finally if he shows himself accommodating to the other
citizens. Yet few men's natures are found to be of themselves adapted to
this end. The majority are restrained somehow by the fear of punishment.
Many remain all their lives bad citizens and non-political animals.
6. Finally, no animal is fiercer or more untameable than man, and more prone
to vices capable of disturbing the peace of society. For, besides the
craving for food and love, to which the brutes too are commonly addicted,
man is troubled by many vices unknown to the brutes, for example, the
insatiable desire for things superfluous and that worst of evils, ambition.
There is also the too long-lived memory of injuries, and the burning for
revenge, still increasing after a long interval. And then the infinite
variety of inclinations and appetites, and every man's obstinacy in exalting
his own fancy. Also the fact that man delights in such mad cruelty to his
own kind, that the majority of the woes to which man's lot in life is
exposed proceed from man himself.
7. Therefore the genuine and principal reason why the patriarchs, abandoning
their natural liberty, took to founding states, was that they might fortify
themselves against the evils which threaten man from man. For, after God,
man can most help man, and has no less power for harm. And they are right in
their judgment of the malice of men and its remedy, who have accepted as a
proverb the saying, that, if there were no courts, one man would devour
another. But after men had been brought through their communities into such
order that they could be safe from mutual injuries, the natural result was
that they enjoyed more richly those advantages which can come to men from
other men; for example, that they were imbued from childhood with more
friendly habits, and discovered and cultivated various arts, by which human
life was made rich and comfortable.
8. The reason for founding a state will become still clearer, if we consider
that other means of restraining the malice of men would not have sufficed.
For although the natural law commands men to abstain from inflicting any
injury, still respect for that law cannot insure to men the ability to live
quite safely in natural liberty. For although there may be men or so quiet a
temper that, even with impunity assured, they would not injure others; and
also other men who somehow check their desires from the fear of an evil that
will result; still there is, on the other hand, a great multitude of those
to whom every right is worthless, whenever the hope of gain has enticed
them, or confidence in their own strength or shrewdness, by which they hope
to be able to repel or elude those whom they have injured. There is no one
who does not strive to protect himself against such persons, if he loves his
own safety; and that protection cannot be had more conveniently than by the
help of states. For in spite of the fact that some may have given a mutual
pledge to help each other, still, unless there be something to unite their
judgments, and firmly bind their wills to carry out the pledge, it is vain
for one to promise himself unfailing aid from the others.
9. Lastly, although the natural law sufficiently teaches men that those who
inflict injury upon others will not go unpunished, nevertheless neither fear
of the Divinity nor the sting of conscience is found to have strength to
control the malice of all sorts of men. For with many, through defect of
training and habit, the force of reason grows deaf as it were. The result is
that they aim at things present only, indifferent to the future, and are
moved only by what strikes upon the senses. But since divine vengeance
commonly walks with slow foot, for that reason wicked men are given an
opportunity to attribute the evils which befall the impious to other causes;
especially since they often see wicked men in possession of abundance in
those things by which the crowd measures felicity. And then the goads of
conscience, which precede the crime, seem less strong than those which
follow it, when the deed can no longer be undone. But to check evil desires,
the prompt remedy, and one well adapted to human nature, is found in states.
______
CHAPTER VI
On the Internal Structure of States
1. Our next task is to investigate the manner in which states have been
erected, and how their internal structure is held together. In this
investigation it is first evident that, to meet the dangers which threaten
individuals from the perversity of men, it was impossible for some place, or
arms, or brutes, to furnish a more convenient and effective protection than
could other men. But since their power is not carried to distant objects, it
was necessary that those by whom that end was to be attained should join
together.
2. And it is not less certain that the agreement of two or three cannot
afford that sort of security against other men. For it is easy for so many
to conspire to overpower these few, that they can insure for themselves a
perfectly certain victory over the others; and the hope of success and
impunity will give them confidence for the attack. Therefore, to this end it
is necessary for a considerable mass of men to join together, that the
addition of a few to the numbers of the enemy may not be of appreciable
moment in helping them to victory.
3. Among the many who unite with this end in view, there must be agreement
in regard to the employment of means suited to that same end. For even many
will accomplish nothing, if they are not agreed among themselves, but are
divided in opinion and have different aims. Or, they may for a time agree,
under the impulse of some emotion, and yet presently they will go in
different directions, with the usual changeableness of man's nature and
inclinations. And although they promise by general agreement that they will
employ their powers for the common defense, still, even in this way, the
multitude is not sufficiently safeguarded for any length of time. But
something further must be added, that those who have once consented together
for peace and mutual aid in the interest of the common good, may be
prevented from disagreeing again later, when their own private good seems to
clash with the public.
4. But in human nature two faults in particular are found, which hinder many
persons, who are their own masters and independent of each other, from long
agreeing for some common end. One is the diversity of inclinations and of
judgment, in distinguishing what is most useful for that end; and with this
is joined in many cases dullness in discerning which proposal of several is
more advantageous, and also obstinacy, in defending with tooth and nail what
has once somehow caught one's fancy. The second fault is indifference and
reluctance to do the useful thing of one's own motion, when there is no
necessity, to compel the recalcitrant to do their duty willy-nilly. The
former fault is counteracted by permanently uniting the wills of all; the
latter, if there is constituted some authority, which can inflict upon those
who resist the common advantage, some immediate and sensible punishment.
5. The wills of many men can be united in no other way, than if each
subjects his will to the will of one man, or one council, so that
henceforth, whatever such an one shall will concerning things necessary to
the common security, must be accounted the will of all, collectively and
singly.
6. Moreover, a power, such as must be feared by all, can likewise be
constituted among a multitude of men in no other way than if all,
collectively and singly, have bound themselves to employ their powers in the
way he shall prescribe, to whom they have all resigned the direction of
their powers. But when a union both of wills and powers has been brought
about, then at last a multitude of men is quickened into the strongest of
bodies, a state.
7. Again, for a state to coalesce regularly, two compacts and one decree are
necessary. For first of all, when the many men, who are thought of as
established in natural liberty, gather to form a state, they individually
enter into a joint agreement, that they are ready to enter into a permanent
community, and to manage the business of their safety and security by common
counsel and guidance, in a word, that they mutually desire to become
fellow-citizens. They must all together and singly agree to this compact;
and a man who shall not do so, remains outside the state that is to be.
8. After this compact a decree must be made, stating what form of government
is to be introduced. For until they have settled this point, nothing that
makes for the common safety can be steadily carried out.
9. After the decree concerning the form of government, another compact is
needed, when the person, or persons, upon whom the government of the nascent
state is conferred are established in authority. By this compact these bind
themselves to take care of the common security and safety, the rest to yield
them their obedience; and by it also all subject their own wills to the will
of that person or persons, and at the same time make over to him, or to
them, the use and employment of their powers for the common defense. And
only when this compact has been duly executed, does a perfect and regular
state come into being.
10. A state thus constituted is conceived as a single person, and
distinguished and differentiated from all individual men by a single name;
and it has its own peculiar rights and its possessions, which neither
individuals, nor many persons, nor in fact all together, can claim for
themselves, except him who has the highest authority, that is, to whom the
rule of the state has been entrusted. Hence a state is defined as a
composite moral person, whose will, intertwined and united by virtue of the
compacts of the many, is regarded as the will of all, so that it can use the
powers and resources of all for the common peace and security.
11. But the will of a state, as the source of public acts, declares itself
either through one man, or one council, according as the chief authority has
been conferred upon him or them. Where the government of the state is in the
hands of one man, the state is understood to will whatever that man shall
please (it is presupposed that he is in his right mind), in regard to
matters concerning the end for which states exist.
12. But where the government of a state has been conferred upon a council,
consisting of a number of men, each one of whom retains his natural will,
the will of the state is regularly understood to be that upon which a
majority of the men composing the council have agreed; unless it has been
expressly determined what fraction of the council must be in agreement, in
order to represent the will of the whole body. But when two rival proposals
are evenly matched, nothing will be done, but the case will remain as
before. As between several rival proposals, that one will prevail which has
more votes than its rivals singly; provided the number voting for it is that
which, according to public enactments, can otherwise represent the will of
the whole body.
13. The state being thus constituted, the central authority, according as it
is one man, or one council of the few, or of all, is called a monarch, a
senate, or a free people. The rest are styled subjects, or citizens,
understanding the latter term in its wider sense. There are some, however,
who, in a narrower sense, usually call only those citizens, who by their
union and consent formed the state in the first place, or else their
successors, namely, the heads of households. Moreover, citizens are either
original or adopted. The former are those who were present in the beginning
at the birth of the state, or their descendants. These it is the custom also
to call indigenous. The adopted citizens are those who from without join
themselves to a state already constituted, with the purpose of planting the
seat of their fortunes there. As for those who sojourn in the state, merely
to tarry for a time, though subject just so long to its authority, they are
still not regarded as citizens, but are called strangers or immigrants.
14. However, what has been laid down with regard to the origin of states
does not prevent us from saying with good reason, that civil authority is
from God. For it is His will that the natural law be observed by all men;
and in fact, after the race had multiplied, life would have come to be so
barbarous, as to leave scarcely any place for the natural law, whereas its
observance is greatly promoted by the establishment of states. In view of
all this, and since he who orders an end is understood to order also the
means necessary to the end, God too, through the medium of reason's mandate,
is understood antecedently to have enjoined upon the now numerous human race
to establish states, which are animated, so to speak, by their highest
authority. Their order also He expressly approves in the Holy Scriptures,
and confirms its sacredness by special laws, and testifies that all this is
peculiarly His care.
______
CHAPTER VII
On the Functions of the Supreme Authority
1. What are the functions of the supreme authority, and in what ways its
force exerts itself in states, can be clearly deduced from the nature and
end of the latter.
2. In a state all have submitted their will to the will of the rulers, in
regard to the things that make for the safety of the state, as the citizens
are willing to do whatever the rulers desire. To make this possible it is
necessary for the latter to make known to the former what is their will in
such matters. They do this, then, not only by mandates addressed to
individuals, concerning particular affairs, but also by general regulations,
from which everyone may for all time be certain in regard to things to be
done or left undone. By these also is usually denned what ought to be
regarded as a man's own, and what another's; what is to be held lawful or
unlawful in that state, what honorable or dishonorable; what part of his
natural freedom each one retains, or how each should adapt the enjoyment of
his rights to the peace of the state; and finally what each has the right to
exact of the other, and in what manner. For it is of the utmost importance
to the fair name and peace of a state to have all these things clearly
defined.
3. Moreover, it is the chief end of states, that by mutual agreement and
help men should be safe from the losses and injuries which their fellow-men
can, and usually do, inflict. To obtain this from the men with whom we unite
to form the same community, it is not enough for them to agree to abstain
from injuries, nor for the mere will of a superior to be made known to the
citizens. But there is need of the fear of punishment, and of the power to
enforce it. And the punishment, if it is to suffice for our purpose, must be
so regulated that violation of the law is manifestly a greater hardship than
the observance; and thus that the severity of the penalty outweigh the
pleasure or profit received, or hoped for, from the injury. For, of two
evils, men can only choose the less. There may indeed be many men who are
not restrained from doing injury by a threatened penalty, but this is to be
counted among the exceptional cases, which human conditions do not allow us
altogether to avoid.
4. Furthermore, controversies very often arise in regard to the right
application of the laws to single acts, and, if a violation of law is
claimed, many points are encountered which have to be carefully weighed.
Consequently, that peace may be maintained among the citizens, it is the
duty of the supreme authority to hear and decide the suits of its citizens,
to examine the acts of individuals, which are charged with being contrary to
law, and to pronounce and execute a sentence in conformity with the laws.
5. But, in order that those who have united to form a state, may be safe
against outsiders, it is the duty of the supreme authority to assemble,
unite and arm, such a number of citizens, or hire such a number of
substitutes, as shall seem needful for the common defense, in view of the
uncertain numbers and strength of the enemy; and again to make peace, when
that shall be expedient. And the interests both of war and peace are served
by treaties, that the advantages of different states may be better shared
with each other, and also a stronger enemy may be repelled by united forces,
or reduced to order. Hence it belongs also to the supreme authority to enter
into treaties that will serve both situations, and to bind all the subjects
to the observance of the same; also to turn to the account of the state all
advantages flowing therefrom.
6. Again, the affairs of a large state, whether in time of war or of peace,
cannot be administered by one man, without ministers and magistrates.
Consequently the supreme authority must appoint men in its place to examine
the controversies of citizens, to discover the intentions of neighbors,
command soldiers, collect and disburse the resources of the state, and
finally to look out for the interest of the state everywhere. And the
possessor of supreme authority has the power and the obligation of
compelling these men to do their duty, and of demanding an account of what
they have done.
7. And inasmuch as the affairs of a state cannot be carried on either in war
or peace without expense, it is the duty of the supreme authority to compel
the citizens to meet the same. And this is done in various ways; for
instance, the citizens may set aside for these needs some part of the
property or income of the country they occupy; or individual citizens may
contribute out of their own possessions, and at the same time give their
services when necessary; or customs duties may be imposed upon wares
imported or exported (the former, however, being a burden chiefly to the
citizens, the latter to foreigners); or a suitable fraction may be taken
from the price of commodities which are consumed.
8. Finally, since the actions of men are controlled by their several
opinions, and most men are in the habit of judging things in accordance with
their habit, or as they see the matter is commonly judged; and since very
few can by their own ability distinguish truth and honor, it is expedient
for the state that it resound with such teachings, publicly taught, as are
in harmony with the proper end and need of states, and, at the same time,
that the citizens' minds be imbued with them from boyhood. Hence it is the
duty of the supreme authority to appoint men to give such instruction
publicly.
9. These functions of the supreme authority are, moreover, so connected by
nature, that, if the form of the state is to remain regular, they must, all
together and singly, belong root and branch to one man. For if one or two of
them are quite lacking, the government will be defective, and unfitted to
accomplish the purpose of the state. But if, on the other hand, they are
divided, so that some belong root and branch to one man and the rest to
another, an irregular state, lacking in coherence, necessarily results.
______
CHAPTER VIII
On the Forms of Government
1. The supreme authority usually produces different forms or government,
according as it is found in the possession of a single man, of a council
consisting of a few, or of one including all.
2. And the forms of government are either regular or irregular. The former
are found where the supreme authority is so concentrated in a single entity,
that, from a single will, it is conveyed to every part and concern of the
state, without division and separation. Where this is not found, the form of
government will be irregular.
3. Of the regular state there are three forms: first, when the supreme
authority is in the hands of one man, and is called monarchy; second, when
the supreme authority is in the hands of a council composed of selected
citizens only, and is called aristocracy; third, when the supreme authority
is in the hands of a council composed of all the heads of households, and is
called democracy. In the first the possessor of power is called a monarch,
in the second the nobles, in the third the people.
4. In all these forms the power is indeed the same. But monarchy has this
conspicuous advantage over the other forms, that there deliberation and
decision, that is, the actual exercise of government, do not demand the
naming of times and places, but can take place anywhere and at any time, so
that the monarch has always the power immediately to perform acts of
government. But for a decision of nobles and people, who are not one natural
person, they must come together at a fixed place and time, and there
deliberate and decide in regard to public affairs. For otherwise the will of
senate and people, which results from the unanimous opinions of a majority,
cannot be learned.
5. But, as with other rights, so also with the supreme authority, it happens
in one place to be well administered, in another ill and unwisely. Hence
some states are called healthy, others unhealthy and corrupt. Yet it is
unnecessary to invent special forms, or species, of state, in view of such
maladies. As for the maladies, however, which afflict states, some are
connected with persons, others with the state itself. Hence some are called
personal defects, others constitutional.
6. Personal defects in a monarchy are these: if he who occupies the throne
is devoid of the arts of reigning, and unconcerned, or insufficiently
concerned, for the state, and prostitutes it to be rent asunder by the
ambition or avarice of unworthy ministers; or if he is dreaded for his
cruelty and proneness to anger; if, even without necessity, he delights in
exposing the state to danger; if by extravagance or unwise largesses he
dissipates the resources gathered to meet the expenses of the state; if he
unreasonably accumulates money extorted from the citizens; if he is
insulting and unjust, or has any other faults by which one gains the name of
a bad prince.
7. Personal defects in an aristocracy are these: if by intrigue and base
arts a way into the senate is open to wicked or incompetent men, while their
betters are excluded; if the nobles are divided by factions; if they try to
abuse the commons as if slaves, and to increase their private patrimony by
appropriating the possessions of the state.
8. Personal defects in a democracy are these: if incompetent and turbulent
men are in the habit of defending their opinions turbulently and rudely; if
great talents, not dangerous to the state, are suppressed; if, because of
fickleness, laws are made and unmade at random, and things approved are soon
without reason disapproved; if low-bred and incompetent men are set over the
administration of affairs.
9. Personal defects applying to any kind of state are: if those upon whom
the administration is incumbent perform their duty negligently or basely;
and if citizens, who have no distinction left them but that of obedience,
champ the bit.
10. But it is a constitutional defect when the laws or institutions of a
state are not adapted to the genius of the people or of the country; or
where these dispose the citizens to internal discord, or to incur the
righteous indignation of their neighbors; or if they make the citizens
incapable of performing the functions necessary to the preservation of the
state; for example, if, owing to the laws, they can only lapse into an
unwarlike sloth, or be unfitted to endure peace; or if the fundamental laws
are so ordered that, because of them, public affairs cannot be transacted
except slowly or with difficulty.
11. To such unhealthy states many apply special names also, calling a
defective monarchy tyranny, a defective government of the few, oligarchy, a
defective popular government, ochlocracy. Yet it frequently happens that
many men in using these terms do not express so much a malady of the state,
as their own feeling or displeasure with the present regime, or the rulers.
For, if a man dislikes a king or a monarchy, he commonly calls even a lawful
and good prince tyrant or despot, especially when he enforces the laws
strictly. So too the man who grieves at his exclusion from the senate, while
thinking himself in no way inferior to the other senators, contemptuously
and enviously calls them oligarchs, that is, a few persons who, though in no
way superior to the rest, still exercise authority over their equals or
betters, not without arrogance. Finally, haughty men, and those who dislike
popular equality, seeing that in a democracy all have equal right to vote on
a public question, whereas in every state the common people is the most
numerous, call that an ochlocracy, that is, a state where the common herd is
in power, and no privilege is left to uncommon men, such as they reckon
themselves.
12. An irregular state is one in which that union, in which the essence of
the community consists, is not so perfectly found, and that not by reason of
a malady or defect inherent in the administration, but under such conditions
that that form of government has by public law or custom been established as
legitimate. But, since the varieties of aberration from a standard can be
infinite, it is also impossible to establish certain definite species of
irregular forms of government. The character, however, of such a form can be
plainly understood from one or two examples. For instance, if in a republic
the senate and people should both have an equal authority to carry on public
business, neither being responsible to the other. Or, if in a kingdom the
power of the nobles should so increase that henceforth they are subordinate
to the king only as inferior colleagues.
13. We speak of systems of states where several perfect states are so
connected by some special bond, that their several powers can be regarded as
substantially the powers of one state. And systems arise chiefly in two
ways; by a common king, or by a treaty.
14. A system arises through a common king, when several separate kingdoms
have one and the same king as the result of an agreement, or by virtue of a
marriage, an inheritance, or a victory, with the reservation, however, that
they do not form one kingdom, but are separately administered by their
common king according to the fundamental laws of each kingdom.
15. Another species of system appears when several neighboring states are
connected by perpetual treaty in such a way that certain functions of the
supreme authority, having especially to do with defense against outsiders,
are to be exercised only with the consent of all, while the liberty and
independence of the several states in other matters remains intact.
______
CHAPTER IX
The Characteristics of Civil Authority
1. Every authority by which an entire state is ruled, in any form of
government, has this quality, that it is supreme, that is, not dependent in
its exercise upon any man as a superior, but operating according to its own
judgment and discretion, so that its acts cannot be nullified by any man as
a superior.
2. It follows then that the same supreme authority is anupeuthunos
[unaccountable], in other words, not bound so to render account to any human
being, that, if that person did not approve the account, it would for that
reason be liable to human penalties or constraint, proceeding as it were
from a superior.
3. Connected with this is the fact that the same supreme authority is
superior to human and civil laws as such, and thus not directly bound by
them. For those laws are dependent upon the supreme authority in origin as
well as in duration. Hence it is impossible for it to be bound by them,
since it would otherwise be superior to itself. And yet, when the possessor
of supreme authority has by a law enjoined certain obligations upon the
citizens, and the matter applies to himself as well, it is proper, and
helpful in lending authority to the law, for him to comply willingly with
the same himself.
4. Lastly, the supreme authority has a special sanctity, so that not only is
it wrong to resist its legitimate commands, but also the citizens must
patiently bear with ifs severity, just as the peevishness of parents is
borne by good children. And even when it has threatened the most cruel
injuries, individuals will seek their safety in flight, or endure any amount
of misfortune, rather than draw the sword against one who is indeed harsh,
but still the father of his country.
5. Moreover, the supreme authority, especially in monarchies and
aristocracies, is in some eases found to be absolute, in others limited.
Absolute authority is said to belong to the monarch who can administer it
according to his own judgment, not according to the norm of definite and
permanent statutes, but as the present exigency seems to demand; and who
thus provides for the safety of the state at his own discretion, according
as its circumstances require.
6. But one man's judgment is not immune from error, and his will, especially
in the midst of such liberty, is easily bent in the worse direction. Hence
it has seemed wise to same nations to circumscribe the exercise of his
authority by certain limits. And this was done when, upon conferring the
throne, they bound the king to certain laws concerning the administration of
the functions of government. And whenever matters came up affecting the
general interest, and incapable of being decided in advance, it was their
will that these things should not be undertaken, except with the
foreknowledge and consent of the people, or after their representatives had
been called together in an assembly, that less occasion might be given the
king to turn away from the welfare of the kingdom.
7. Finally, in kingdoms we often meet with a distinction in the method of
holding the royal power -- a method which is not found to be uniform in all
cases. For some kings are said to hold their kingdom as a patrimony, so
that, at their caprice they can divide it, alienate and transfer it to
anyone they please. This is particularly the case with those who have gained
a kingdom for themselves by arms, and have acquired a people of their own.
But the other kings, who have been chosen by the will of the people,
although they have the highest right to exercise authority, are nevertheless
unable to divide the kingdom at their pleasure, to alienate or transfer it.
On the contrary, they are bound to follow the fundamental law, or
established practice of the nation, in handing on the kingdom to their
successors; and for this reason some compare them in a way with
usufructuaries.
______
CHAPTER X
On the Methods of Acquiring Authority, Especially
Monarchical
1. Although consent of the subjects is required for the establishment of any
kind of legitimate authority, this is not everywhere obtained in the same
way. For sometimes a people is compelled by the violence of war to consent
to the authority of the victor; and again the citizens voluntarily give
their consent to the appointment of a prince.
2. The violent method of acquiring authority is usually called seizure, that
is, when one, sustained by a just cause for the war, and by the favor of
strength in arms, and of fortune, so far reduces a nation that they are
compelled henceforth to submit to his authority. And the legitimate title to
his authority is derived not only from the fact that the victor, had he
wished to take advantage of the rigors of war, could have deprived the
vanquished of life altogether, and so gains additional credit for clemency,
in permitting them to take the lesser evil; but also from the fact that the
adversary, in going to war with one whom he had himself previously injured,
and to whom he had refused to give fair satisfaction, exposes all his
fortunes to the hazard of war, so that already he tacitly agreed in advance
to any condition which the issue of the war is to assign to him.
3. But a kingdom is acquired by the voluntary consent of a people through
the medium of an election, by which the nation to be established, or already
established, voluntarily designates a certain man, as being, in its
judgment, capable of authority. And when he has been notified of the decree
of the people, and has accepted, and the people have promised their
obedience, authority is conferred upon him.
4. Election in an already constituted state, if it follows the death of a
former king, is usually preceded by an interregnum. Although in this the
state falls back into the imperfect form, when the citizens are bound
together merely by their first compact, still the latter gains much strength
from the name of the country and the common feeling for it, and the fact
that the property of most of the citizens is attached to that place. And
these facts constrain the good citizens to keep the peace with one another
voluntarily for a time, and to endeavor all the more promptly to restore the
full authority. But it is of great assistance, in avoiding the disadvantages
apt to arise from an interregnum, if men are named in advance, in whose
hands shall rest the administration of the state during a vacancy of the
throne.
5. But in some countries, on the death of each monarch, a new election is
held. In others the kingdom is conferred upon another man, with the
understanding that it is to pass by succession to others without the
intervention of a new election. Such right of succession is established
either by the will of the king himself, or by that of the people.
6. Kings who hold their kingdom as a patrimony, can dispose as they please
in regard to the succession; and their disposition will be respected, just
as is the last will of private individuals, especially in the case of one
who founded or acquired the kingdom. In so doing it will be permitted, if
one so choose, to divide the kingdom among several children, daughters even
being not excluded; or even to name as heir an adopted son, or a natural
son, or one who is connected with the king by no tie of blood at all.
7. When, however, a king of this sort has made no special disposition in
regard to the succession, it is presumed in the first place, that he did not
by any means wish his kingdom to expire with himself, but that, on account
of the ordinary human affection, it should devolve in any case upon his
children. It is further assumed that he wished the monarchical form to be
maintained after his death, as the form he had himself approved by his
example; also that the kingdom should remain undivided, since division
involves the sundering both of the kingdom and of the royal family; further,
that, among those of the same degree, the male should be preferred to the
female, the first-born to those born later; and finally that, if children
are lacking, the kingdom should devolve upon the nearest blood relation.
8 But in such kingdoms as were in the beginning established by the free will
of the people, the order of succession depends originally upon the will of
that same people. And if they, in conferring upon the king his authority,
have also given him the right to appoint his successor, the man of his
choice will succeed him. Where this has not been done, the people are
understood to have reserved that right to themselves. And if the people have
been pleased to confer a kingdom with hereditary rights upon an elected
king, they have either made the order of succession like that of ordinary
inheritances, so far as the welfare of the kingdom permits, or have modified
it in some particular way.
9. When the people have simply bidden the king to hold the kingdom with
hereditary rights, and have added no particulars, it was indeed their will
that the kingdom should devolve after the manner of private inheritances,
but not without some modification. For the welfare of states requires that
succession to a throne should differ from private inheritances substantially
in these respects: (1) the kingdom must be indivisible; (2) the succession
should be confined to those who are descended from the first king; (3) only
those born in accordance with the laws of the country shall succeed,
excluding not only bastards, but also adoptive heirs; (4) in the same
degree, males shall be preferred to females, though older; (5) the successor
should recognize the fact that the kingdom is a gift of the people, not of
his predecessor.
10. But as inextricable controversies could easily arise, as to which of two
members of the reigning family was most nearly related to the late king,
when they were far removed from the founder of the house, for this reason
many nations have introduced the lineal succession. It consists in this,
that each draw, as it were, a perpendicular line, following his descent from
the founder of the reigning family; and that members of the family be called
to the throne, according as their line takes precedence over the others. And
there is no passing from one line to another, so long as anyone of the
former line survives, in spite of the fact that there may be someone who is
very closely related, and in a nearer degree, to the deceased king.
11. The commonest forms of lineal succession are the cognate and the agnate.
In the former women are not excluded, but postponed to men in the same line,
with a return to them, however, if there is a failure of males of a
preferred or equal degree. The latter form, on the other hand, forever
excludes women and their children, even males.
12. In case a controversy should arise in regard to the succession in a
patrimonial kingdom, it will be best to take the matter before arbitrators
among the royal family. If the succession has been determined by will of the
people, a declaration of the people will remove the uncertainty.
______
CHAPTER XI
On the Duty of Rulers
1. What precepts make up the duty of rulers, is clearly deduced from the
character and end of states, and from a consideration of the functions of
the supreme authority.
2. Here it is above all required that rulers themselves diligently learn all
that tends to a complete knowledge of that duty; since no one can perform
creditably what he has not learned thoroughly. Hence the prince must put
aside those pursuits which do not make for this end. He must restrict
pleasures, delights and empty employments, in so far as they interfere with
that end. Accordingly he must also admit to his intimacy men of sense,
skilled in affairs; while flatterers, triflers, and those who have learned
only useless accomplishments, must be kept at a distance. But, in order to
know how rightly to apply the general precepts of statecraft, he must
himself learn as intimately as possible the condition of his state, and the
character of the subject people. Furthermore, he must devote himself
especially to those virtues whose practice is most conspicuous in so arduous
an office, and adapt his habits to the dignity of such eminence.
3. The general law of rulers is this: the welfare of the people is the
supreme law.[12] For authority was conferred upon them, with the intention
that the end for which states have been established, should thereby be
insured. Hence they ought also to believe that nothing is to their private
advantage, if it is not also to the advantage of the state.
4. For the internal tranquillity of states it is necessary that the wills of
the citizens be controlled and guided, as is expedient for the welfare of
the state. Hence it is the duty of rulers not only to prescribe laws suited
to that end, but also so to confirm the public education, that the citizens
shall accept legal prescription not so much from fear of punishment as by
habit. It contributes to this end also, to take care that Christian
doctrine, in its pure and unmixed form, shall nourish in the state, and that
in the public schools such teachings be imparted, as are in conformity with
the purpose of states.
5. It is expedient for the same purpose to have plain and clear laws in
writing, concerning matters of the most common occurrence among the
citizens. There must not, however, be more provisions of the civil laws than
conduce to the good of the state and its citizens. For, in regard to what
they ought to do, or leave undone, men more usually deliberate in the light
of natural reason than by knowledge of the law. Hence, if there are more
laws than can be readily retained in memory, and they forbid things which
reason does not in itself prohibit, in ignorance and without any evil
intent, people must necessarily stumble upon the laws, as upon a snare. Thus
an unnecessary inconvenience is caused the citizens by the rulers, which is
contrary to the purpose of states.
6. But since it is in vain that laws are passed, if the rulers allow them to
be violated with impunity, it is accordingly their duty to have charge of
the execution of the same; to see to it that every man gets his rights
without tedious delays, evasions and vexations; to inflict penalties
according to the gravity of each offense, and the intention and ill-will of
the transgressor; and not to bestow pardon without a sufficient reason;
since it is unjust and most productive of irritation among the citizens,
other things being equal, to treat differently those who have deserved the
same treatment.
7. Again, just as nothing must be forbidden under a penalty, if not to the
advantage of the state, penalties too must be regulated, so that they are in
proportion to that object, and also that the citizens may not suffer more
than the state gains. For the rest, if penalties are to accomplish their
aim, it is clear that they must be made just so serious, that their seventy
outweighs the gain and pleasure which can be derived from the act forbidden
by the law.
8. Moreover, inasmuch as the purpose with which men united to form a
community was to insure security from injuries inflicted by others, it is
the duty of rulers to prevent citizens from injuring each other, and this
with a severity proportioned to the increased opportunities for injury
afforded by their living constantly together. And the differences of class
and rank must not go so far that the stronger can at their pleasure insult
the weaker. Moreover, it conflicts with the aim of the supreme authority, if
citizens avenge by private violence the wrongs they fancy have been done
them.
9. Furthermore, although a single prince is not equal to the task of
carrying on directly all the business of a large state, so that of necessity
ministers must be called to share his cares, nevertheless, just as the
latter borrow all their authority from the ruler, so the responsibility for
their doings, both good and bad, still remains his in the end. For this
reason, and because affairs are conducted well or ill, according to the
character of the ministers, rulers are bound to employ in the service of the
state honest and capable men, and from time to time to inquire into their
acts, and finally to reward or punish them, according as they are found to
have done their part, in order that the rest may understand that public
business is to be conducted with no less fidelity and diligence than
private. So also, in view of the fact that wicked men are lured to the
commission of crime by hope of impunity, which they find easiest of
attainment where judges are open to corruption, it is the duty of rulers
severely to punish such judges, as promoters of crimes, by which the
security of the citizens is destroyed. Moreover, though the ordinary conduct
of affairs is to be intrusted to ministers, the rulers will nevertheless
never refuse to lend an ear patiently to the complaints and desires of the
citizens.
10. Since citizens are not bound to bear tributes and other burdens, except
in so far as these are necessary to meet the expenses of the state in peace
and war, it will therefore be the duty of the rulers in this connection not
to exact more than the necessities, or conspicuous advantage, of the state
require, and, so far as possible, to regulate the burdens so that the
citizens shall be injured as little as possible by them. Also the burdens
must be distributed in due proportion, and no immunities conceded to some
citizens, to the loss and oppression of the rest. And the revenue yielded
must be spent for the needs of the state, not dissipated in luxury,
largesses, superfluous display, or vanities. Finally, care must be taken
that appropriations correspond to income, and in case the latter is
insufficient, the remedy must be found in economy, the unnecessary expenses
being cut down.
11. Rulers are not indeed bound to support their subjects, except that
charity commands a special care of those who, because of some undeserved
misfortune, are unable to sustain themselves. However, since the funds
necessary to the maintenance of the state are to be gathered from the
property of the citizens, and the strength of a state consists also in the
courage and the riches of its citizens, rulers must, therefore, see to it,
so far as in them lies, that the property of the citizens increases. It
makes for this end if the citizens are encouraged to get the largest
possible return from the land and its waters; to apply their industry to the
materials produced in their country, and not to purchase from others the
labor they can conveniently perform themselves. And this is brought about,
if the mechanic arts are fostered. It is of the greatest importance also to
cultivate trade, and, in maritime countries, navigation. And not only must
indolence be proscribed, but the citizens must also be recalled to economy
by sumptuary laws, forbidding superfluous expenses, especially those which
transfer the wealth of the citizens to foreigners. However, the example of
the rulers is more effectual in this matter than any laws.
12. Moreover, the soundness and internal strength of states is brought about
by the union of the citizens, and the more carefully the latter is
maintained, the greater is the effectiveness with which the power of the
authority is distributed through the whole body of the state Therefore, it
is incumbent upon rulers to see to it that factions do not arise in the
state; that some citizens are not linked together by special compacts; and
that they are not all, or a part of them, on whatever pretext, sacred or
profane, more dependent on any other man, whether within or without the
state, than upon their lawful prince; and that they do not imagine that more
protection for themselves is found in any one than in him.
13. Finally, since the international condition of states is a peace that is
quite untrustworthy, it is the duty of rulers to take care that the courage
of the citizens and their skill in arms are fostered, and all the things
needed to repel an attack made ready in time -- fortified places, arms,
soldiers, and money, the sinews of action. But, even assuming a just cause
for war, no one is to be deliberately attacked, unless a very safe
opportunity favors, and the circumstances of the state easily permit. To the
same end, the plans and undertakings of neighbors must be carefully
ascertained and watched; and friendships and alliances must be contracted
with prudence.
______
CHAPTER XII
On Civil Laws in Particular
1. It remains for us to consider also the functions of the supreme authority
in particular and the points that are to be especially observed in regard to
them. In this the first place belongs to the civil laws, which are the
decrees of the civil ruler, by which it is enjoined upon the citizens what
they ought to do in the civil life, and what they should leave undone.
2. Now they are called civil laws chiefly for two reasons, either as regards
their authority or their origin. In the former sense, the term civil laws
can be applied to all laws according to which justice is administered in the
civil court, from whatever source they draw their origin. In the latter
sense, we call those laws civil, which proceeded in the first place from the
will of the supreme civil authority, and have to do with those matters which
have not been defined by the natural and divine law, but make for the
particular advantage of individual states.
3. But the civil laws should ordain nothing which is not for the good of the
state. And so it is of great importance to the order and tranquillity of the
civil life, that the natural law should be well observed by the citizens.
Hence it is incumbent upon the rulers to give to that law the force and
effectiveness of civil law. For in most men we find such depravity, that
neither the evident utility of the natural law, nor the fear of the
Divinity, is enough to restrain it. Therefore, by bestowing upon natural
laws the force of civil laws, the supreme authority has the power to cause
the uprightness of the civil life to be somehow maintained.
4. And the force of the civil laws consists in this, that a penal sanction
is added to the precepts in regard to doing or leaving undone; in other
words, that there is a definition of the penalty which, in the court of the
state will await the man who has failed to do what was to be done or has
done what should have been left undone. Natural laws, lacking this penal
sanction, are violated with impunity in the human court, punishment being
reserved, however, by the divine tribunal.
5. Furthermore, because the character of the civil life does not permit that
each man exact by his own violence whatever he thinks is due him, for that
reason the civil laws at this point too come to the aid of the natural law,
in affording an action for obligations under that law, by virtue of which
action the obligations can be enforced in a civil court, with the assistance
of a magistrate. Whatever has failed to be thus confirmed by civil laws,
cannot be exacted against the will of the other party, but depends solely
upon the honor and conscience of the debtors. It is the custom, however, of
the civil laws to furnish an action particularly for those obligations which
have been contracted between men by express agreements. For the others,
resting upon some undefined duty of the natural law, they have generally
refused an action, that the better men might have opportunity to practice
their virtue, and that they might gain high praise, if they appeared to have
done well without compulsion. Often, too, the matter did not seem so
important that the judge should be troubled about it.
6. Again, since many precepts of the natural law are indefinite, their
application being left to the discretion of every man, the civil law, with a
view to the order and tranquillity of the state, is accustomed to assign to
such actions their time, manner, place, and persons, also to determine other
circumstances, and at times to encourage men by rewards to undertake them.
Also, if there is any obscurity in the natural law, it belongs to the civil
law to explain it. And this explanation the citizens are bound to follow in
practice, in spite of the fact that their own private opinion may perhaps
take a different direction.
7. Moreover, since by the natural law, many acts have been left to the
judgment and discretion of the individual, but in a state peace and public
order require that these acts be regulated in a uniform manner, the civil
laws for that reason usually prescribe for acts and matters of this kind a
certain form, as is the case in last wills, in contracts, and many others.
For the same reason also civil laws are in the habit of circumscribing the
exercise of those rights which a man has naturally.
8. To the civil laws, in so far as they do not openly conflict with the
divine law, the citizens owe obedience, not from mere dread of punishment,
but from an intrinsic obligation, confirmed by the natural law itself; for
among its precepts is this also, that one must obey lawful rulers.
9. Finally, citizens are bound to obey particular commands of their rulers,
no less than the general laws. In this, however, we must notice whether the
ruler commands the citizen to do something, as an act belonging to the
citizen, or bids him undertake the mere execution of an act, which must
belong properly to the ruler. For in the latter case, necessity being
imposed by the ruler, a citizen can without sin on his own part do something
whereby the ruler himself commits a sin. But a citizen cannot rightly commit
in his own name a sin repugnant to the natural and divine law. Hence it
follows that, if a citizen, by command of the ruler, bears arms, even in
unjust war, he does not sin. But, if a man, by command of the same ruler,
condemns an innocent person, bears false witness, or slanders another, he
certainly does sin. For a citizen serves as a soldier in the name of the
state, but judges, testifies, and accuses in his own name.
______
CHAPTER XIII
On the Power of Life and Death
1. Power over the lives of the citizens belongs to the supreme civil
authority in two ways, indirectly and directly. The former is for the
defense of the state, the latter to check crimes.
2. For, since the violence of foreigners must often be repelled by violence,
or our rights must be obtained from them by force, the supreme authority
certainly may compel its citizens to carry this out, in which case there is
no intention that the citizens shall lose their lives, but they are merely
exposed to the danger of death. And that in such dangers the citizens may be
able to conduct themselves with energy and skill, the supreme authority is
bound to train and prepare them. Moreover, no citizen may render himself
incapable of military service, from fear of that danger. And the enrolled
soldier will by no means desert his assigned post out of fear, but rather
will fight to the last breath; unless he knows it to be the will of the
ruler, that he preserve his life, rather than the position; or else, in case
the place is not worth so much to the state as the lives of those citizens.
3. On the other hand, the supreme authority can take the lives of citizens
directly on account of flagrant crimes, and as a punishment, which, however,
falls upon the man's other possessions also. And at this point we must make
some general explanations of the nature of punishment.
4. Punishment then is an evil that one suffers, inflicted for an evil that
one has caused; in other words, a vexatious evil imposed upon a man by
authority and forcibly, in view of a previous offense. For although certain
acts may often be imposed upon a man as a punishment, the point, however, is
that they are laborious and vexatious to the doer, and that, while he is
acting, a certain suffering is thereby imposed upon him. Moreover,
punishment must be inflicted upon unwilling subjects, because otherwise it
would not accomplish its purpose, which is to deter men from wrongdoing by
its severity. And this effect does not belong to the things that one
willingly accepts. Finally the character of a punishment does not attach to
evils which come to one in war or battle, while resisting, since they are
not ordered by authority; nor to those which a man suffers unjustly, since
they do not come to one in view of a previous offense.
5. But although natural liberty has this effect, that one who is in that
state and has no superior but God, is liable to the divine punishments only,
with the introduction of authority among men, the safety of communities has
assigned to rulers this further power, that they themselves restrain the
wickedness of their subjects by executing punishment, so that the larger
number may be able to live in mutual security.
6. Again, although there appears to be no injustice in letting the evil-doer
suffer evil, nevertheless in human punishments we have not merely to
consider what evil has been committed, but also what advantage can be
derived from the punishment. Thus also punishments are by no means to be
inflicted, with the intent to let the injured party gloat, and take pleasure
in the pain and punishment of him who did the injury. For this pleasure is
dearly inhuman and contrary to sociability.
7. The real purpose of human punishments is the prevention of wrongs and
injuries; and this is achieved, either if the wrongdoer is reformed, or
others by his example, so that they do not desire to do wrong in the future,
or else if the wrong-doer is so restrained that he cannot henceforth injure
anyone. Which can also be stated in these terms: in punishment regard is had
to the interest either of the wrong-doer, or of him who would have gained,
if the wrong had not been done, and who has thus been injured by the wrong
deed; or for the interest of all without distinction.
8. In the first place, then, in inflicting punishment regard is had to the
interest of the wrong-doer, when his spirit is reformed by the pain of
punishment, and the desire to do wrong quenched by the same means. This kind
of punishment is in many states left to heads of households, to exercise
over their domestics. But one is evidently not permitted to go so far as a
death-penalty, for that one object, since the dead man cannot be reformed.
9. And then there is involved in punishment the interest of the injured
party, that for the future he may suffer nothing similar from the same man
or others. The former object is attained if the wrong-doer is destroyed, or
else, if, without prejudice to his life, the power to injure is taken from
him; or if by his punishment he learns not to offend. The latter object may
be attained by open and public punishment, with ceremony suited to inspire
terror in others.
10. Finally, in punishment the interest of all is sought, when the aim,
namely, is to prevent the man who has injured one, from going on to injure
others, or that, frightened by his example, the rest may abstain from
similar crimes. And this is attained in the same way as above.
11. If, then, we proceed to consider both the ends of punishment and the
condition of the human race, it is evident that not all sins are of such a
character that it is at all proper for them to be punished in a human court.
Hence we exempt from human punishment acts that are merely inward, that is,
the pleasurable thought of some sin, greed, desire, intention without
effect, even if they should come to the knowledge of others by a subsequent
confession. For, as harm comes to no one from such an inward motion, it is
not to the advantage of anyone either, that a man be punished for the same.
12. It would also be excessively harsh to subject to human punishments those
very small lapses which, in the present state of human nature, it is not
given us to escape, no matter how great the attention one endeavors to
bestow upon them.
13. Moreover, many acts are unnoticed by human laws, on account of the peace
of the state, or for other reasons; for example, in case a good act will be
more conspicuous, if it does not seem to have been undertaken with any
regard to a penalty; or where it is not worth while to trouble the judges,
or if the question is most difficult to decide, or a really inveterate evil
cannot be removed without a convulsion in the state.
14. Finally, it is necessary to exempt also from human punishment the vices
of mind, resulting from the common corruption of mankind, and so numerous
that there would be no subjects left, if you should wish to punish those
faults with severe penalties, so long as they have not broken out in wicked
acts; for example, there are ambition, avarice, inhumanity, ingratitude,
hypocrisy, envy, arrogance, anger, animosity and the like.
15. However, if some offenses worthy of human punishment have been
committed, it is not always necessary for a punishment to be exacted. It
sometimes happens, in fact, that pardon for their offense can properly be
given to the culprits. This, however, should not be done without serious
reasons. Among such are these: if the ends of punishment in a certain case
do not seem necessary, or if pardon is likely to produce a greater advantage
than is punishment, or if the ends of punishment can be better attained in
some other way. Also, in case the guilty party alleges, as worthy of special
reward, his own great services to the state, or those of his relatives; or
if he is recommended by some other distinction, as. for instance, by a rare
art; or if it is hoped that the offense will be wiped out by noble deeds;
especially where ignorance in some form, though not altogether without
blame, has been involved, or if the particular reason for the law has ceased
to apply to the act in question. Often, too, pardon must be granted on
account of the number of the guilty, that the state may not be depopulated
by punishments.
16. But the seriousness of offenses is estimated from the object upon which
it was committed, according as that is accounted noble and valuable; also
from the effect, according as a great loss or a small one results for the
state; and finally from the wickedness of the intent, which is gathered from
various indications; for example, if the man could easily have resisted the
reasons by which he was impelled to sin; or if, in addition to the general,
there was also some particular, reason which should have deterred him from
wrongdoing; or where peculiar circumstances aggravate the deed; or if a man
has a disposition capable of resisting the wiles of wicked men. Moreover, we
usually consider whether a man was the first to do wrong, or seduced by the
example of others, whether once, or oftener, and after advice has been spent
in vain.
17. The kind of punishment, however, and the precise amount to be inflicted
for each offense, it rests with the supreme civil authority to define. And
it should in this matter have only the advantage of the state before its
eyes. Hence it is possible and a frequent occurrence for the same penalty to
be imposed for two unequal offenses. For the equality which judges are
instructed to observe with regard to defendants, is understood to concern
defendants who have committed the same kind of offense, in so far as an
offense punished in the one case ought not, without the weightiest reason,
to be condoned in the other. But although man ought, so far as possible, to
be more merciful toward man, sometimes, however, the welfare of the state
and security of the citizens require that penalties be aggravated; for
example, if there is need of a more heroic remedy against increasing vices;
or when an offense is most destructive to the state. But in general, with
regard to the scale of penalties, care must be taken that they be sufficient
to repress that desire by which men are carried into the crime for which the
penalties are established. Also severer penalties must not be exacted than
have been defined by law, unless very extreme circumstances aggravate the
deed.
18. But the same penalty does not affect all equally, and thus does not
produce the same effect upon all in repressing the desire to do wrong.
Therefore, both in the general assignment of penalties, and in the
application of them to individuals, regard must be had to the person of the
delinquent himself, and those qualities of his which may increase or dimmish
his sense of punishment; for example, age, sex, rank, wealth, strength, and
the like.
19. Again, just as no one can have a penalty properly so-called visited upon
him in a human court for another man's offense, so, in case wrong has been
done by some society, he who did not consent thereto will not be bound
thereby. And hence from such dissenter nothing can be taken away which he
did not acquire on account and by virtue of the society. Yet in general when
a society is punished, even the innocent usually suffer loss. Moreover, the
offenses of societies expire when no one survives any longer of those by
whose consent and cooperation the misdeed was committed.
20. It happens frequently, however, that the crime of one man furnishes an
occasion whereby a disadvantage comes to others, or a benefit previously
hoped for is intercepted. Thus, in case the property of parents is
confiscated on account of a crime, even innocent children are reduced to
poverty. And when the defendant flees, his security is compelled to pay the
fine, not because of guilt, but because he voluntarily pledged himself in
such a contingency.
______
CHAPTER XIV
On Reputation
1. Reputation in general is the value of persons in the common life,
according to which value they are capable of being placed on an equality
with other persons, or compared with them, and either preferred or postponed
to them.
2. It is divided into the simple and the intensive. Both are considered with
reference to those who live in natural liberty, or to those who live
together in the civil state.
3. Simple reputation, as between those who live in natural liberty, consists
principally in this, that a man show himself, and be regarded as one with
whom men can deal as with a good man, and as one who is ready to live with
others according to the precept of the natural law.
4. And this reputation is maintained intact, so long as a man has not yet
violated the natural law as regards others by some wicked or flagrant deed,
knowingly and purposely, with malice aforethought. Hence also, one is
naturally accounted a good man until the contrary is proved.
5. Reputation of this kind is diminished by flagrant deeds maliciously
perpetrated against the natural law, -- deeds which cause the need of
greater circumspection, if one is to deal with such a person. This stain,
however, can be wiped out, by making a voluntary reparation of the damage
caused, and by giving proof of serious repentance.
6. It is likewise utterly destroyed by a manner and mode of life aimed
directly at the promiscuous hurting of others, and at making profit out of
the evident injury of others. So long as men of this type are unwilling to
come to their senses, they can be treated as common enemies by all whom
their malice can in any way touch. Yet these men can recover their
reputation, when they have refunded the damages, or obtained pardon, and
giving up a vicious mode of life, have entered upon one that is honorable.
7. Simple reputation, in the case of those who live in states, means that a
man has not been declared a vicious member of the state, in accordance with
its laws and customs, and that he is considered of some account.
8. It is lost in a state, cither because of one's condition alone, or on
account of crime. The former kind of loss takes place in two ways: when that
condition naturally involves no shame, or else when it is connected with
vice, or at least that assumption. The first of these occurs in some states,
where slaves are of no account; the second obtains with regard to panders,
harlots, and the like, who indeed enjoy the common defense, so long as they
are officially tolerated in the state, but are to be excluded from the
company of honorable men. This also happens to some who are occupied with
things loathsome or vile, though not naturally vicious.
9. By crime, on the other hand, reputation is clearly lost, when according
to the civil laws, and for a certain crime, a man is branded with infamy,
and this whether he is further punished with death, and his memory thus
branded, or he is expelled from the state, or retained in the state, as an
infamous and rotten member.
10. It is plain, moreover, that simple reputation, or natural honor, cannot
be taken away from a man by the mere will of the rulers. For this in no way
makes for the advantage of the state, and so can by no means be understood
as a power bestowed upon the rulers. Thus also a man who executes the orders
of the state, in the capacity of a mere minister, cannot, it seems, contract
real infamy.
11. Intensive reputation is that by virtue of which persons, otherwise equal
as regards the simple reputation, are preferred to one another, according as
one, more than another, possesses those qualities by which others are
prompted to render honor. And honor is, properly, the expression of our
judgment of another's superiority.
12. This intensive reputation can be considered with reference to those who
live in natural liberty, or to the citizens of the same state. We must next
weigh its bases, and in fact according as these produce a mere fitness to
expect honor from others, or a right strictly so-called, by which the honor
can be claimed from others as one's due.
13. The bases of intensive reputation in general are all those things which
involve conspicuous perfection and superiority, or are thought to prove the
same, the effect of this superiority being in harmony with the purpose of
the natural law, or of states. Examples are perspicacity of mind, and the
ability to learn various sciences and arts, a keen judgment in administering
affairs, a mind strong and unshaken from without, superior to temptations
and alarms, eloquence, beauty and dexterity of body, the blessings of
fortune, and above all remarkable achievements.
14. All of these, however, produce merely an imperfect right, that is, a
fitness to receive honor and respect from others. Hence, if a man refuses it
to others, in spite even of their high merits, he does no injury, but is
merely in bad repute for his churlishness and rudeness. But a perfect right
to receive honor from another, or the outward signs of it, is derived either
from the authority which one has over the other, or from an agreement
entered into with him on this point, or from a law made or approved by their
common master.
15. But as for princes and whole nations, they usually defend their
preeminence and precedence, by alleging chiefly the antiquity of the kingdom
and the family, the size and wealth of their subject territory, and their
power, also the nature of the power by which the king possesses the
authority in his kingdom, and the splendor of his title. All of these,
however, do not in themselves produce a perfect right to precedence over
other kings and nations, unless this has been acquired by agreement or
concession on their part.
16. Among citizens, on the other hand, it is the duty of the ruler to
designate grades of dignity. In this, however, he rightly regards each man's
superiority and fitness to serve the state. And whatever rank he has
assigned to a citizen, the latter has a right to defend against his
fellow-citizens, and he is no less bound to rest content with it himself.
______
CHAPTER XV
On the Power of the Supreme Authority over Property in the
State
1. Where citizens have had their property bestowed upon them by the rulers,
it is for the latter to deride what rights the former have over the
property. In the same way, such property as citizens have acquired
completely by their own industry, or in some other way, is subject to three
principal rights, resulting from the nature of states, necessary for their
purpose, and belonging to the rulers.
2. The first right consists in this, that the rulers can prescribe laws for
the citizens, with regard to the use of their property, in conformity with
the interest of the state, or concerning the amount and quality of their
possessions, as also the method of transfer to others, and other matters of
the kind.
3. The second right consists in this, that the ruler can take away a small
part of their property, under the name of tribute or taxes. For, since the
life and fortunes of the citizens must be defended by the state, the
citizens must contribute the means from which the expenses necessary to that
end may be met. Hence he is very shameless who wishes to enjoy the
protection and advantage of the state, and yet to contribute no services or
property to its maintenance. And yet in this matter wise rulers with good
reason adapt themselves to the querulous nature of the crowd, and endeavor
to bring about the collection of taxes as imperceptibly as possible,
especially by observing equality, and by exacting moderate and assorted
taxes, rather than large and uniform ones.
4. The third right is that of eminent domain, consisting in this, that, when
urgent necessity of the state demands, any subject's property which the
immediate situation especially requires, can be seized and applied to public
purposes, even if the property far exceeds the proportion which he was bound
to contribute to the expenses of the state. But for this reason the excess
ought to be refunded to that citizen from the public treasury, or by
contribution of the other citizens, so far as possible.
5. Besides these three rights, there are in many states special public
properties, which are called the patrimony of the state or kingdom. And in
some places this is divided into patrimony of the prince and that of the
state, or the royal [fiscus] and the state treasury [aerarium]. The former
of these is designed to support the king and his household, the latter for
the public needs of the kingdom. Of the first the king has the usufruct, and
can at his own discretion dispose of the income derived from it. For the
second he performs the part of an administrator, and is obliged to apply it
to the uses for which it was designed. He cannot alienate either, except
with the consent of the people.
6. Much less, however, can he who does not have a kingdom as his patrimony,
alienate the whole kingdom, or a part of it, unless the consent of the
people is given, and in the latter case the separate consent of the part to
be alienated. So also when the situation is reversed, a member cannot break
itself off from the state against the will of the latter, unless by the
might of a foreign foe it is reduced to such a condition that it cannot be
saved in any other way.
______
CHAPTER XVI
On War and Peace
1. It accords most closely with the natural law, if men are at peace with
one another, voluntarily performing their obligations; in fact peace itself
is a state peculiar to man, as distinguished from the brutes. Yet at times,
even for man himself, war is permitted, and sometimes necessary; when,
namely, owing to another's malice, we are unable to preserve our
possessions, or gain our rights, without employing force. Even in this case.
however, prudence and humanity persuade us not to resort to arms, if more
harm than good will result for us and ours from the avenging of our wrongs.
2. The just causes for which war can be undertaken reduce themselves to
these: that we may preserve and protect ourselves and our belongings against
the unjust invasion of others; or that we may assert our claim to what is
owed us by others who refuse to pay; or to obtain reparations for an injury
already inflicted, or a guarantee for the future. A war waged for the first
cause is called defensive, if for the other causes, offensive.
3. And yet when one thinks he has been injured, there must be no instant
recourse to arms, especially when there is still some doubt about the right
or the fact. But we must try to see whether the matter can be settled in a
friendly way, for example, by arranging a conference of the parties, by
appealing to arbitrators, or intrusting the case to the decision of the lot.
These methods are especially to be tried by the nation making the demand:
since an advantage certainly attends possession with some sort of tide.
4. Moreover, the unjust causes of war are either openly such, or they admit
some color [of a pretext], however pale. The former are referred chiefly to
two heads, avarice and ambition, the passion, that is, for possession, or
for rule. The latter are various, as, for example, fear prompted by the
wealth and power of a neighbor, an advantage not based upon right, the
desire to gain better lands, the refusal of what we have earned by some good
quality as such, the stupidity of the possessor, the desire of extinguishing
a right lawfully acquired by the other party, if it seems rather irksome to
us, and so forth.
5. Again, the most appropriate mode of action in war is force and terror;
but it is nevertheless permitted to use trickery and ruses against an enemy,
provided there as no breach of faith. Hence it is permissible to deceive an
enemy by a pretended speech, or fictitious reports, but not at all by
promises or agreements.
6. As for the force employed in war against the enemy and his property, we
should distinguish between what an enemy can suffer without injustice, and
what we cannot bring to bear against him, without violating humanity. For he
who has declared himself our enemy, inasmuch as this involves the express
threat to bring the worst of evils upon us, by that very act, so far as in
him lies, gives us a free hand against himself, without restriction.
Humanity, however, commands that, so far as the clash of arms permits, we do
not inflict more mischief upon the enemy than defense, or the vindication of
our right, and security for the future, require.
7. War is classified as formal and informal. For the first it is required
that it be waged on both sides by authority of him who has the supreme
power, and that a declaration shall have preceded. A war not declared, or
waged against private citizens, is informal. To this class belong also civil
wars.
8. The right of making war in a state belongs to him who has the supreme
authority. Hence, to engage in war without permission given by the ruler,
exceeds the authority of a magistrate, even in case he infers that the
supreme power, if consulted, would decide to wage war here and now. But all
who are placed with military forces in charge of some province or fortified
place are understood, from the purpose of their office, to be also
instructed to repel by any means an attacking enemy from the places
intrusted to them. They may not, however, rashly transfer the war to hostile
territory.
9. But whereas one living in natural liberty can be attacked in war only for
injuries which he has himself inflicted, in a state the ruler is often
attacked by war, or the whole state is attacked, even though he was not
responsible for the injury. But if this is to be rightly done, the injury
must have been in some way transferred to him. And rulers of states share in
the injuries done by their former citizens, or by those who have recently
taken refuge among them, if the rulers have suffered the acts, or afford
shelter. Suffering an act becomes culpable, only in case one knows the wrong
is being done, and has the power to prevent. But the ruler of a state is
assumed to know what is openly and frequently done by the citizens. Ability
to prevent is always presumed, unless the lack of it is plainly proved. But
the right to make war upon a ruler who receives and protects a guilty person
fleeing to him, merely to escape punishment, results rather from a
particular agreement between neighbors and allies, than from some common
obligation, except in case the fugitive while he is among us plans acts of
hostility against the state which he has abandoned.
10. There is also an established custom among nations that in payment for a
debt incurred by the state, or in which the state has involved itself by
maladministration of justice, the property of individual citizens is held,
to this extent, that foreigners to whom the debt is owed, can lay hands upon
such property, if found among them. However, a restitution to the citizens
who have had their property taken away in this manner, should be arranged by
those who contracted the debt. Such executions are usually called reprisals,
and they are frequently the prelude to wars.
11. War can be waged not only by anyone for himself, but also on behalf of
another. But for this to be rightly done, requires a just cause on the part
of him for whom the war is waged, and on the part of his helper a
satisfactory reason, in view of which, and for the other's defense, he can
carry on hostilities against a third. But among those for whom we not only
can, but also must, take up arms, there are in the first place our subjects,
not only collectively, but also singly; provided it is clear that the state
will not be involved in greater evils in consequence. Next come allies, if
this was included in the treaty with them. These, however, yield precedence
to our citizens, when they have need of help at the same time. And,
furthermore, a just cause of war is presupposed in their case, and a certain
prudence in undertaking the war. Then come friends, even though no express
promise has been made to them. Finally, when there is no other reason,
common descent alone may be a sufficient ground for our going to the defense
of one who is unjustly oppressed, and implores our aid, if we can
conveniently do so.
12. License in war goes so far that, although in killing, devastating and
plundering a man may have overstepped the limits of humanity, still in the
general opinion of nations he is not regarded as infamous, and a man whom
good men should avoid. Nevertheless the more civilized nations despise
certain methods of injuring an enemy; for example, using poison, or bribing
the citizens and soldiers of another state to slay their rulers.
13. Movable property is understood to have been captured in war only after
it is safe from the enemy's pursuit; immovable property, when we hold it
under such circumstances that we have the power to keep the enemy at a
distance. And yet, in order to extinguish completely the former owner's
right to recover such property, it is necessary for him to renounce all
claim by a subsequent agreement. For otherwise, what was acquired by force,
may be taken away again by force. But just as soldiers fight under authority
of the state, so what they take from the enemy, as properly acquired for the
state, not for the soldiers. Yet it is everywhere customary to leave movable
property, especially of small value, to the soldiers who have taken it; and
this is connived at, or it takes the place of a reward, or sometimes of pay;
or it is to tempt such as may be willing to sell their blood when there is
no compulsion. But when captured property is again wrested from the enemy,
the immovable things return to their former owners, and the movable should
do likewise. But among most nations these too are given up to the soldiers
as booty.
14. Finally, authority also is acquired in war, as well over individuals as
over whole peoples that have been conquered. But to make this legitimate,
and binding upon the consciences of the subjects, the vanquished must have
given their word to the victors, and the latter must have laid aside their
hostile attitude and temper towards the former.
15. Warlike acts are suspended by truces, that is, a convention by which,
for a time, although the state of war and the quarrel out of which the war
arose still remain, they must abstain from warlike acts of offense; and when
the truce has expired, unless peace has meanwhile been restored, they return
to hostilities without a fresh declaration.
16. Truces can, moreover, be divided into two kinds: one when the armies
come to a halt on their expedition, and warlike preparations are continued
by both sides, -- a truce which is generally made for a short time only; the
other, under which warlike preparations are terminated on both sides. These
can be entered into for a considerable length of time, and usually are; they
also have the appearance of a complete peace, and sometimes are called by
that name, with the addition of a definite time. For otherwise, as a rule,
every peace is perpetual, that is, it permanently extinguishes the
controversies on account of which the war was begun. But the so-called tacit
truces involve no obligation; in that case the parties both remain quiet at
their discretion, and can proceed again to warlike acts, whenever they
please.
17. But war ceases entirely when peace has been ratified by the rulers of
both sides. Although it rests with the parties to the negotiations to define
the terms and conditions of peace, they must be faithfully executed at the
time agreed upon, and must be observed. In confirmation thereof, besides the
customary oath, and giving of hostages, others, especially those present at
the negotiations, often guarantee the observance of the peace, promising
their aid, if one party is injured by the other in defiance of the terms of
peace.
______
CHAPTER XVII
On Alliances
1. Times of war and times of peace are equally served by alliances, or
agreements entered into by the rulers on both sides. As regards their
subject matter, they may be divided into those which are made with a view to
the mutual performance of some duty already enjoined by the natural law; and
those which add something over and above the natural law, or at least give a
certain precision to those duties, in case they seem indefinite.
2. To the former class belong alliances in which the agreement concerns the
mere exercise of simple humanity, or abstention from injury. Here too belong
those by which a mere friendship is confirmed, without the performance of
anything in particular; or those by which the right of hospitality or trade
is sanctioned, in so far as it is already required by the natural law.
3. In the latter class, alliances are either equal or unequal. The former of
these are such as are the same for both parties, that is, when the promises
of both sides are not only equal, absolutely, or in due proportion to their
resources, but also on a basis of equality, so that neither party is in an
inferior position as compared with the other, or subject to the other.
4. Alliances are unequal when the respective performances are unequal, or
else when one party is in an inferior position. And unequal performances are
promised, either by the ally of higher rank, or by the lower. The former
happens when the more powerful promises assistance to the other, without any
stipulation in return, or promises on a larger scale than the other. The
second case occurs, if the inferior ally is bound to perform more than he
receives from the other.
5. Of the requirements exacted of an inferior ally, some involve a
diminution of his sovereignty; for example, if it has been agreed that the
inferior ally is not to exercise a certain function of his sovereignty,
except with the consent of the superior. Some requirements, however, do not
diminish sovereignty, although they bring with them some temporary burden,
that is, one which can be disposed of once and for all; for instance, in
case one party is bound by a treaty of peace to pay the soldiers of the
other, to make good the expenses of war, to pay a certain sum of money, to
raze walls, give hostages, surrender ships and arms, and so forth. Even
permanent burdens do not in all cases diminish sovereignty. Examples are:
the requirement that one side have the same friends and enemies as the
other, while the obligation is not reciprocal; or the prohibition to build
walls at certain places, or to take certain voyages, and so on. Also, if one
of the allies is bound to show polite deference to the majesty of the other,
or to pay him a certain amount of reverence, and to acquiesce modestly in
his derision.
6. Again, both equal and unequal alliances are commonly contracted for
various reasons. Of the latter those which aim at some permanent combination
of several states produce the closest form of alliance. But most frequent
are those which concern help to be furnished in defensive or offensive
warfare, or the regulation of commerce.
7. There is also a well-known division of alliances into the real and the
personal. The latter are entered into with a king in reference to his own
person, and expire with his death. The former are contracted not so much
with reference to the king or rulers of the people as such, as in the
interest of that state or kingdom; and they endure even when their authors
are dead.
8. Connected with alliances are overtures, the proper term for agreements
entered into by a minister of the supreme power in regard to matters of its
concern, but without its instructions. The ruler is not indeed bound by
these, except after he has ratified them; but if the minister has absolutely
contracted, and ratification has not followed, he must see how he can
satisfy those who, relying upon his word, have been deceived by agreements
that are null and void.
______
CHAPTER XVIII
On the Duties of Citizens
1. The duty of citizens is either general or particular. The former arises
from the common obligation, by virtue of which they are subject to the civil
authority. The latter arises from a particular office and function, which
has been laid upon individuals by the supreme authority.
2. The general duty of citizens has regard to the rulers of the state, or to
the entire state, or to their fellow-citizens.
3. To the rulers of the state a citizen owes respect, loyalty and obedience.
This implies that one acquiesce in the present regime, and have no thoughts
of revolution; that one refrain from attaching himself to any other, or
admiring and respecting him; that one have a good and honorable opinion of
the rulers and their acts, and express himself accordingly.
4. A good citizen's duty towards the whole state is to have nothing dearer
than its welfare and safety, to offer his life, property, and fortunes
freely for its preservation; to exert all the strength of his mind and
industry to add to its fame and promote its interests.
5. As regards his fellow-citizens, it is the duty of the citizen to live
friendly and peaceably with them, to show himself obliging and good-natured,
and not to make trouble by peevishness or obstinacy ; not to envy the
advantages of the others, or to deprive them of the same.
6. Particular duties either permeate the whole state, or they concern
themselves with a part merely. In regard to all of these there is this
general precept: a man should not seek or undertake any duty in the state,
for which he knows that he is unfit.
7. Those who by their counsel assist the rulers of states, should turn the
eye of their mind to every part of it; whatever shall seem to the interest
of the state, they must declare with skill and fidelity, without bias or
unworthy motives; in all their counsels they must have the welfare of the
state as their aim, not their own wealth of power: they are not to humor the
evil inclinations of princes by flattery; but to abstain from factions and
unlawful gatherings; not to conceal anything that ought to be said, not to
reveal anything that should be kept in confidence; to show themselves
inaccessible to corruption by foreigners; not to postpone public business
for private business or pleasures.
8. Those who are publicly appointed to perform the rites of religion must do
so with dignity and attention, set forth true dogmas concerning the worship
of God, show themselves to the people a conspicuous example of their own
teaching, and not rob their office of dignity, their teaching of weight, by
moral depravity.
9. Those who are publicly commanded to instil knowledge of various kinds
into the minds of the citizens, must teach nothing false or pernicious; but
so impart the truth that their hearers may assent, not from the mere habit
of the lecture-room, so much as because they have perceived the substantial
reasons therefor. They must avoid all teachings tending to disturb civil
society, and hold all human knowledge vain, if no advantage flows from it
for the life of man and citizen.
10. Those in charge of the administration of justice must give easy access
to all, and protect the common people from oppression on the part of the
more powerful. They must render the same justice to the poor and lowly, as
to the powerful and influential; and not drag suits out beyond what is
necessary. They should abstain from corruption, use diligence in the hearing
of cases, set aside every passion that corrupts honest judgment; and in
doing right they should fear no one.
11. Those intrusted with the command of the army are to train the soldiers
with diligence and in due time, and strengthen them to endure the hardships
of the service; they must keep military discipline intact; they are not
rashly to expose the soldiers to slaughter by the enemy, but to provide
grain and pay as promptly as they can, and not make away with any of it.
They must see that the soldiers are always loyal to the state, and must
never gain their favor against the state.
12. Soldiers on their part are to be content with their pay,[13] to abstain
from plundering and annoying the peasants, to undergo hardships for the
defense of the state willingly and actively, not to invite dangers
recklessly, nor avoid them through cowardice, to show bravery against the
enemy, not against their comrades, to defend manfully the post assigned, to
prefer an honorable death to a shameful flight and life.
13. Those whose services the state employs in foreign countries, should be
careful and circumspect, skilled in distinguishing the unreal from the real,
the true from the fictitious, very tenacious of secrets, persistent in the
interest of their state as against corruption in any form.
14. Those who have charge of gathering or disbursing the resources of the
state must avoid all needless harshness, and not add any burden for their
own profit, or out of petulance or ill-will. They are not to retain any
public moneys, and must satisfy without unnecessary delay the creditors of
the state.
15. The duration of the citizens' particular duty is, so long as they fill
the office from which the duty springs; and when they leave the same, the
latter too expires. In the same way the general duty lasts as long as they
are citizens. But they cease to be citizens, if they leave with the express
or tacit consent of the state, and fix the abiding-place of their fortunes
elsewhere; or if for some crime they are exiled and deprived of the right of
citizenship; or if they have been overpowered by the enemy, and compelled to
submit to the rule of the victor.
The End
Glory to God Alone